In January 2020, the U.S. Court of Appeals for the fourth circuit upheld a lower court ruling in Roe and Voe v. Esper, which allows the two HIV positive members of the air force to continue their service. This ruling also will prevent the discharge of any other airmen based on HIV status alone (Buhl, 2020).
Previously, the U.S. Air Force has justified the discharge of military service members living with HIV under the ‘Deploy or Get Out’ policy, which was first introduced in February of 2018. This policy stated that any service member who is deemed non-deployable for over a year would be subsequently discharged. This policy unfairly affected service members living with HIV, as the long-standing HIV policies within the Air Force and United States military consider HIV positive members non-deployable (Allen, 2018).
The plaintiffs in the Roe and Voe v. Esper case first requested a preliminary injunction in February 2018 in the district court for eastern Virginia.
The most recent case of Roe and Voe v. Esper was filed in December 2018 by Lambda Legal and the Modern Military Association of America, with pro bono co-counselors Winston and Strawn. After filing in December, the appeals court opinion concluded that since the government didn’t consider the low possibility of transmission of HIV, the Air Force denied the service members of their right as employees able to serve.
“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,” said the opinion (Lambda Legal).
According to the Center for HIV Law and Policy:
“Military policies and regulations – most of them codified in the Uniform Code of Military Justice – set forth consequences for conduct by service members living with or at risk of HIV,” (HIV Law and Policy).
According to The Body, Roe and Voe v. Esper case is one of three cases challenging military policies against service members living with HIV. Two others are currently being reviewed.
“Even though my commanding officer and doctors wanted me to stay in, the informal board recommended discharge, then a formal board of three members recommended discharge,” Roe said in reference to his experience with the Air Force.
Scott A. Schoettes is the HIV project director at the advocacy group Lambda Legal, who helped represent Roe and Voe in their plea at the court of appeals.
“The military is really the only employer in the United States that’s still allowed to do this. Everybody else you can hold accountable. You can sue under statutory protections for people living with HIV,” said Schoettes.
Roe and Voe will be able to continue serving in the Air Force under the recent court of appeals ruling.
References:
- Buhl, L. (2020, January 16). Federal Court Upholds Injunction Preventing Discharge of HIV-Positive Airmen. The Body dot com. Retrieved from https://www.thebody.com/article/appeals-court-injunction-discharge-hiv-military?ap=2008
- HIV Law and Policy Military. (n.d.). Retrieved from https://www.hivlawandpolicy.org/issues/military
- Allen, S. (2018, September 19). The Danger of 'Deploy or Get Out' Facing HIV-Positive Troops. The Daily Beast. Retrieved from https://www.thedailybeast.com/the-danger-of-deploy-or-get-out-facing-hiv-positive-troops
- Opinion: Roe and Voe v. Esper. (2020, January 10). Retrieved from https://www.lambdalegal.org/in-court/legal-docs/roe_va_20200110_opinion
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