Monday, January 13, 2020
On Friday the Court of Appeals for the Fourth Circuit upheld an injunction prohibiting implementation of a policy preventing the deployment of Air Force members living with HIV. The case of Roe and Voe v. United States Department of Defense was argued for Plaintiffs by Scott Schoettes of the Lambda Legal Defense and Education Fund and others. The decision prevents the discharge of the Plaintiffs and other similarly situated Air Force members.
Quoting the lower court the addressed the vulnerability of those living with HIV and the need to include similarly situated members in the protections ordered by the court:
"Because of the longstanding stigma and discrimination facing those living with HIV, it may be difficult to identify potential plaintiffs in a case of this nature. Granting relief to all similarly situated servicemembers is thus the only way to ensure uniform, fair, rational treatment of individuals who belong to a vulnerable, and often invisible, class."
Importantly, the court addressed the failure of policy to incorporate medical advances.
A ban on deployment may have been justified at a time when HIV treatment was less effective at managing the virus and reducing transmission risks. But any understanding of HIV that could justify this ban is outmoded and at odds with current science. Such obsolete understandings cannot justify this ban, even under a deferential standard of review and even according appropriate deference to the military's professional judgments."
Addressing the current state of science is desperately needed in legal opinions involving HIV. Laws criminalizing HIV are not based upon science but on the fear of contraction common among those unfamiliar with medical advances. Perhaps state courts will follow and find spitting laws, unprotected sex laws and other statutes based on fear, not science. no longer serving any public interest and instead discriminating against a vulnerable population.