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Injunction Preventing HIV-Positive Air Force Members' Discharge Reaches 4th Circuit

Oil painting of Air Force "Talon" jet in flight
By Joseph Fawbush, Esq. on September 20, 2019

In the 1980s and 90s, HIV was a new, little-understood, and deadly disease. Fear of its spread was rampant. Most people with HIV hid their condition for as long as possible, particularly from their employers and the public.

Their secrecy was often justified. One hemophiliac middle-school student was expelled from school for having AIDS in 1985. Veteran sports reporters, not usually an overly sensitive bunch, cried when Los Angeles Lakers legend Magic Johnson retired due to HIV in 1991 – and there was plenty of speculation at the time he put his teammates at risk.

HIV Workplace Protections

Things have changed. Two people have been cured from HIV. Treatment has vastly improved, and life expectancy is high for those diagnosed. While HIV remains in the public awareness, it doesn’t nearly have the stigma that used to be associated with it. In 2008, Congress amended the Americans with Disabilities Act to specifically include HIV as a disability protected from employment discrimination.

But concerns over HIV’s contagiousness remain, despite modern treatment that renders HIV virtually untransmissible. On Wednesday, September 18, the U.S. Fourth Circuit Court of Appeals heard oral arguments on whether the Department of Justice can discharge members of the Air Force for being HIV positive. The Department of Justice is appealing a district court injunction against the members’ discharge. Under a 2018 Trump Administration policy, members of the armed services who have been tagged as non-deployable for the past 12 months are given admin or disability separation from the military. HIV positive members are considered non-deployable.

Two anonymous members of the Air Force brought the suit, which is ongoing in the U.S. District Court for the Eastern District of Virginia.

Air Force Argues Increased Risks Associated With Deployment

The Department of Defense argues that there are both foreign policy and safety risks involved in deploying HIV positive service members overseas. Since HIV members cannot deploy, they must be discharged.

The two Air Force members argue that their discharge violates the Air Force’s own policy, as it states that HIV-positive status is not alone grounds for a medical separation.

It is not clear when the Fourth Circuit will issue its decision, but we’ll be monitoring for further updates to the story.

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