RICHMOND, Va. — Lawyers for two Air Force members who are HIV-positive urged a federal appeals court Wednesday to uphold an injunction that bars the Trump administration from continuing with discharge proceedings against them.
The Department of Defense is appealing a ruling by a judge who found that the Air Force is working under policies that are “irrational” and “outdated.”
The policies prevented the service members with HIV from deploying outside the U.S. without a waiver and resulted in them being considered “unfit” for continued service. The Department of Justice has argued that the military allows service members who contract HIV to continue to serve if they can perform their duties.
While acknowledging that treatment decreases the risk of transmitting HIV, the DOJ argues that the risk is amplified on the battlefield where soldiers often come into contact with blood. The U.S. Central Command, which governs military operations in the Middle East, North Africa and Central Asia, prohibits personnel with HIV from deploying without a waiver.
A three-judge panel of the 4th U.S. Circuit Court of Appeals questioned a Department of Justice attorney extensively about why the military policy is still necessary despite major advances in the treatment of HIV.
“There are risks in the combat context,” said Lewis Yelin, an attorney in the DOJ’s Civil Division.
But Geoffrey Eaton, an attorney for the airmen, argued that the odds of transmitting HIV in combat are infinitesimal and should not limit their deployment or lead to their discharge. Eaton said advances in science and treatment of HIV have made the military’s policies outdated.
The 2018 lawsuit filed by the airmen argues that there is no rational basis for prohibiting deployment of service members with HIV. They argue that they can easily be given appropriate medical care and present no real risk of transmission to others.
The DOJ argues in legal briefs that the Air Force determined that the two airmen could no longer perform their duties because their career fields required them to deploy frequently and because their condition prevented them from deploying to Central Command’s area of responsibility, where most airmen are expected to go.