December 21, 2018

When policies collide, science doesn't matter, and the lives of people with HIV matter even less, you've got a pretty good picture of the Trump administration. In this case, we have an old, outdated military policy that mandates service members cannot deploy to the Middle East if they have HIV. Combine that with Trump's (now former) Defense Secretary James Mattis enacting and enforcing a new "Deploy or Get Out" policy, and you get...well, you get a lawsuit claiming violation of equal protection under the law for service members with HIV.

Two plaintiffs (going by the names of "Richard Roe" and "Victor Voe") are suing Mattis, because they received separation orders from the Air Force just days before the holiday season began. They were forced out because they've tested positive for HIV. This, despite the fact that they've been receiving treatment and taking required medication since their diagnosis, and they're deemed fit to serve.

According to the Washington Post,

Since taking over at the Pentagon almost two years ago, Mattis has made it a priority to whittle down the number of U.S. service members unable to deploy for various reasons.

Known colloquially as “deploy or get out,” the policy he spearheaded came into effect this fall. Under its guidelines, any service member who is deemed unable to deploy for 12 consecutive months will be evaluated for separation.

This doesn't include pregnant or postpartum women, or people who have received combat wounds. It does include people who have tested positive for HIV, because our military has a ban on members with HIV being deployed to the Middle East. It is a rule that was put into place when HIV was much less treatable than it is now, and much more guaranteed to be contagious and fatal. Scott Schoettes, a counsel at Lambda Legal representing the plaintiffs, calls the military's policy anachronistic.

It is easy for such service members to bring sufficient supplies of medication on a deployment, Schoettes said. For most people living with HIV, medication renders the virus inconsequential to their daily lives, and the virus is suppressed to a degree that they no longer can transmit it to others, the complaint said.

“What we’re really asking for here is that HIV be treated the same as any other medical condition in terms of evaluating whether or not you can deploy with it,” Schoettes said. “It shouldn’t be carved out and specifically categorized as ‘you are non-deployable once you have this.’”

Furthermore, according to the lawsuit, the military has a mechanism in place to ALLOW those with HIV to be deployed. They can be granted a waiver. But in this case, they were refused the waiver despite the recommendations of the medical personnel who evaluated Roe and Voe.

4. Unfortunately, current military policies make Service members with HIV who are allowed to deploy the exception rather than the rule, even though one’s HIV status has no effect on deployability for the vast majority of Service members with HIV. Requiring Service members to secure a waiver or exception to policy from those who lack both medical training and a complete understanding of HIV in 2018 often invites or facilitates discrimination. This case highlights two such examples: Air Force personnel ignored the recommendations of their own medical officers and operational commanders and instead arbitrarily and wrongly decided to separate Airmen based solely on their HIV status.

This is not the first lawsuit involving an HIV positive Service member since the Deploy or Get Out policy was enacted, by the way. Sgt. Nick Harrison filed suit in May after being denied a spot as a JAG officer that he'd been previously offered. Sgt. Harrison served in the army on active duty for three years, served in the National Guard while he went to law school, was deployed to Afghanistan and Iraq during law school, finishing after his second deployment. When he finished law school, he got a job in DC, and was offered a position in the JAG corps — a dream of his. But because he was diagnosed with HIV when he returned home from Afghanistan, the offer was withdrawn and he was denied the position.

Is this what Trump means by winning? Is this what he means by the best? Does this sound like a group Mattis would necessarily target after standing up for transgender people in the military? I don't know about you, but over here at C&L, we smell a Pence.

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