The U.S. Court of Appeals for the Fourth Circuit just issued an important decision that should help transform current efforts to end the HIV epidemic.
The court upheld a preliminary injunction against the Air Force, which appealed the decision of a district court in order to continue the discharge of personnel simply because they are living with HIV.
For the first time, a federal appellate court has examined the state of HIV medicine and recognized that people living with HIV can safely perform any job in the world, including the job of U.S. servicemember. Not only does this decision make clear that employment discrimination against people living with HIV is never permissible, it also challenges our leaders to modify policies to help eradicate the stigma that continues to be a primary driver of the epidemic.
The two plaintiffs in the case before the Fourth Circuit — Richard Roe and Victor Voe, who are proceeding pseudonymously, a testament to the severity of the ongoing stigma related to HIV — have served in the Air Force for over 15 years between them. They both love serving their country and intend to continue this service for the foreseeable future. During their careers, they have deployed multiple times, including to combat zones in the Middle East.
After they were each diagnosed with HIV, however, such deployments ended. Since the late 1980s, the Department of Defense has maintained policies that require service members living with HIV to remain stateside. Because they are unable to deploy, people living with HIV are also not allowed to enlist or — more perplexingly — to commission as officers.
Fifteen years after effective treatments for HIV became available, the Navy started allowing its members to deploy to some large-platform ships. But the Army and the Air Force have not modified their deployment policies in light of medical advancements.
In fact, under the Trump administration, the Air Force started moving backward by discharging some Airmen based on their HIV diagnosis — a practice that violates its own rules. This retrogressive policy change prompted the lawsuit that became the subject of the Fourth Circuit’s appellate review.
The unanimous Fourth Circuit’s three-judge panel summed up its opinion regarding the injunction preventing the discharge of the plaintiffs and other members of the Air Force living with HIV:
The Government’s explanations for why it has imposed an effective ban on deploying HIV-positive servicemembers . . . are at odds with modern science. These servicemembers, like other HIV-positive individuals with undetectable viral loads, have no symptoms of HIV. They take daily medication—usually one pill, for some people two—and need a regular, but routine blood test. They cannot transmit the virus through normal daily activities, and their risk of transmitting the virus through battlefield exposure, if the virus can be transmitted at all, is extremely low. Although transmission through blood transfusion is possible, these servicemembers have been ordered not to donate blood. But the Government did not consider these realities when discharging these servicemembers, instead relying on assumptions and categorical determinations. As a result, the Air Force denied these servicemembers an individualized determination of their fitness for military service.
The servicemembers will now return to the district court to prove up what the Fourth Circuit saw so clearly in the record on appeal; that “the Government has not—and cannot—reconcile these policies with current medical evidence.”
The clear statements of this federal appellate court in Virginia — about the relative ease of treatment, the capabilities of people living with HIV, the low risk of occupational transmission in the absence of treatment, and the extremely low or non-existent risk in even the most extreme circumstances if a person is in treatment — should put employers all across the country on notice that discrimination against people living with HIV is never justified.
More importantly, the opinion signals that it is time for our political leaders and policymakers to dismantle the remaining governmental policies that continue to discriminate against people living with HIV. Public health officials have known for years that one of the biggest barriers to convincing people to test regularly for HIV, to engage in care, and to remain adherent to their medications is the overwhelming stigma surrounding this condition.
From the military policies at issue in this case to refusals to hire HIV-positive first responders to state laws criminalizing the sexual activity of people living with HIV, it is time for our government to get out of the HIV discrimination business.
Even with the amazing breakthroughs in HIV prevention and treatment, unless the government stops perpetuating such stigma and discrimination, we don’t stand any real chance of ending the HIV epidemic in the United States.
Scott A. Schoettes is Counsel and HIV Project Director at Lambda Legal, lives openly with HIV, and represents the plaintiffs in Roe and Voe v. Esper, along with attorneys from the Modern Military Association of America and Winston & Strawn LLP. Schoettes also served on the Presidential Advisory Council on HIV/AIDS (PACHA) during the Obama administration.