Kites ‘fired because they are HIV positive’ are fighting to remain in the Air Force in the first case
Two young HIV-positive pilots are fighting to stay in the Air Force after being fired on the grounds that they were “unable to perform reasonably” because their situation is preventing them from engaging in the area of responsibility of the US central command.
Under the Trump government, HIV-positive military members are not allowed to hire or become officers, and Central Command – which controls military operations in the Middle East, North Africa, and Central Asia – prohibits staff with HIV without exemption.
But the anonymous pilots – referred to as Victor Voe and Richard Roe in court – said they could not apply for exemption, such as when they were diagnosed during the fitness evaluation process.
Their lawsuit argues that those who contract HIV cannot be fired solely on the basis of the condition.
Two HIV-positive pilots fight to remain in the Air Force after being fired on the grounds that they are “unable to perform reasonably”
Under the Trump government, HIV-positive military members may not become officers or become officers, but the men say they do not pose a significant risk to others. They take antiretroviral medication and have non-detectable HIV, but the DOJ said the risk on the battlefield is increased because soldiers often come into contact with blood
It argues on the basis of discrimination and states that “our soldiers treat the wounds and diseases of service members and, if possible, they continue to serve”, but service members with HIV “do not enjoy the same treatment.”
The two anonymous men say in the first lawsuit against the US Army that was filed on December 19, 2018, that significant advances in treatment mean they can easily receive appropriate medical care and do not pose a real risk of being transferred to others.
They both take antiretroviral medication and have non-detectable HIV.
Although he acknowledged that treatment reduces the risk of HIV transmission, the DOJ argued that the risk is increased on the battlefield where soldiers often come into contact with blood.
They initially stated in legal documents that the men “were not reasonably able to perform” because they would not be able to go where most pilots are expected.
During a hearing in September last year, a lawyer for the pilots argued that the chance of transmitting HIV in combat is infinitely small and should not limit their deployment or lead to dismissal.
The Air Force said their condition is preventing them from developing in the area of responsibility of the American Central Command
Last month the judge of the American court in Maryland issued a provisional order after he found that the air force works according to “irrational” and “outdated” policies. It allows them to continue to serve before they come to justice in the discrimination case. The DOJ could request a rehearsal for the entire 4th Circuit Court or appeal against the panel’s ruling at the US Supreme Court
Last month the judge of the American court in Maryland issued a provisional order after he found that the air force works according to “irrational” and “outdated” policies.
A panel of three judges from the 4th US Circuit Court of Appeals said the warrant will remain in force while the men dispute their resignation in a lawsuit saying that “any understanding of HIV that could justify this ban is outdated and in violation is with current science ‘.
“Such outdated agreements cannot justify a ban, even under a respectful standard of review and even with due respect for the professional judgments of the army,” wrote Judge James Wynn Jr. in the unanimous decision.
Scott Schoettes, advisor and HIV project director of the non-profit group Lambda Legal, also represents plaintiffs in two other lawsuits that fight the “discriminatory dismissal policy of the Pentagon against service people living with HIV” in the same way. He said it is “a pretty scary and difficult time to move forward and even uphold the rights of LGBT people”
Despite the big victory for the plaintiffs, the DOJ was able to request a rehearsal for the entire 4th Circuit Court or to appeal against the panel’s ruling at the US Supreme Court.
Scott Schoettes, advisor and HIV project director at Lambda Legal, a non-profit group, thinks it is unlikely that the DOJ will appeal because, after a unanimous decision, it ‘generally does not happen’.
“I’m pretty sure we’ll end up in a process where we can prove our claims and ensure that service members can continue to serve,” Schoettes told ABC News.
Schoette – whose non-profit organization represents Voe and Roe – has warned ‘there is more battle ahead of the 1200 people who, according to the Modern Military Association of America, live with HIV in the army.
“Our opponent in this case is the army itself and its current leadership, which seems unwilling to actually accept or struggle with what these drug changes mean for people living with HIV and their ability to serve,” Schoettes said. ABC news.
But Schoettes – which also represents plaintiffs in two other lawsuits that in the same way challenge the “discriminatory dismissal policy of the Pentagon against service people living with HIV” said it was “a pretty scary and difficult time to move forward and even uphold the rights of LGBT people.”
Under Barack Obama, the then Secretary of Defense Ashton Carter lifted the Pentagon’s ban on transgender people serving in the armed forces openly in June 2016 and said that the Pentagon will cover medical costs for uniformed personnel passing
Last spring, the Trump-Pence administration limited the services that transgender military members could do. The policy to exclude trans people from the US military came into force in April after lengthy battles and orders from the federal court
“We have seen this administration, really through regulation, which undermines our rights in so many ways,” he said.
Peter Perkowski, legal and policy director of the Modern Military Association of America, said: “We can blame the Trump administration for the cultural change that has created a situation where the air force no longer feels that it should support its servants with HIV “.
DEPLOY OR GO OUT
The ‘Retention provisions for non-deployable service members’ policy came into effect on 1 October 2018.
A decision is made case by case. However, pilots must demonstrate four things under the DoD instruction 1332.45:
- Medical, dental and physical readiness
- The ability to execute mission requirements from their specific career area in wartime, whether technical, educational or physical
- An up-to-date fitness evaluation test
- A satisfactory level of participant in Air Force Reserve and Air National Guard duties
Non-employable members must be notified each month and if 12 months in a row are determined to be non-employable, they are eligible for divorce.
Last spring, the Trump-Pence administration limited the services that transgender military members could do. The policy to exclude trans people from the US military came into force in April after lengthy battles and orders from the federal court.
Under Barack Obama, the then Secretary of Defense Ashton Carter lifted the Pentagon’s ban on transgender people serving in the armed forces openly in June 2016 and said that the Pentagon will cover medical costs for uniformed personnel who will be transferred.
But by June 2017, Trump tweeted that transgender people would not be allowed to “serve in the US Army in any capacity because of medical costs and the” disruption caused.
The current version of the ban prohibits the transfer of new recruits and also allows the army to fire those who are currently being fired if they are not as their birth gender.
“We can blame the Trump government for the cultural change that has created a situation where the air force no longer feels that it should support its servants with HIV,” said Peter Perkowski, legal and policy director of the Modern Military Association of America . ABC news.
“It’s not just transgender people and it’s not just people living with HIV, it’s the entire LGBTQ / HIV community in the army that is being attacked. It comes from the top. “
Perkowski – whose organization also refers to Roe and Voe – added: ‘I think there is still discrimination for LGBT people, it’s just not as open as before. There are bags of bias. And those are mainly from individuals, but not necessarily from the army itself.
‘At the moment, people with HIV cannot register with the army. And if they are a conscript, they cannot get commission as an officer, no matter how qualified they are. So you are stuck as a recruited person and that of course influences your ability to receive prizes and recognition and promote rank.
“We’ve seen pilots diagnosed with HIV come to the ground, as well as doctors and doctors, including mental health doctors, who were removed from their healthcare job after being diagnosed. So I think a case like this would really hurt those people. ”