Two airmen have filed a federal lawsuit against the Defense Department and Defense Secretary James Mattis after learning last month that they would be discharged for their HIV status.
According to the complaint filed by Lambda Legal, both men were diagnosed with HIV in 2017, both immediately began treatment, and both had undetectable viral loads within just a few months. This means that they cannot transmit the virus to others and that there are no implications to their basic health so long as they take a single pill each day. Both wish to continue building their careers in the U.S. Air Force and believe they are deployable.
Earlier this year, Mattis enacted a new policy colloquially known as “deploy or get out,” or DOGO. According to DOGO, any military personnel who are not fit for deployment across the globe for medical reasons must be separated from the armed services. This appears to be the reason the two airmen were discharged over the recommendations of the medical personnel who assessed them.
But as the complaint lays out, DOGO does allow for exceptions, including for those servicemembers categorized as “Deployable with Limitations.” These are individuals who may need additional medical screening or specific approval before they can be deployed. Among the conditions referenced in this exception is HIV. “Therefore,” the complaint points out, “according to Defendants’ own policies, people living with HIV should be classified as ‘Deployable with Limitations’ and not separated.”
The Defense Department “routinely permit[s] similarly situated individuals who do not have HIV, including but not limited to people with comparable chronic, manageable conditions, to deploy worldwide and to continue to serve.”
Likewise, the Air Force’s provisions for testing positive for HIV merely requires yearly testing after treatment, and presumes that they may continue to serve on active duty.
These two airmen are not the first to challenge discharge over their HIV status. Lambda Legal also filed a similar lawsuit back in May on behalf of Sgt. Nick Harrison of the D.C. National Guard, who was denied a medical waiver to become a JAG officer because of HIV status.
Given the violation of the DOGO policy and the fact that as of a year ago, at least 13 airmen living with HIV were serving overseas, the complaint describes these discharges as “arbitrary, capricious, an abuse of discretion, and/or otherwise not in accordance with law.” By singling out the airmen for their HIV status and treating them differently from service members with other manageable chronic conditions, the complaint also alleges a violation of their rights of equal protection under law.
The complaints come just as the Trump administration is pleading with the Supreme Court to circumvent traditional judicial proceedings and allow its ban on transgender military personnel to take effect.
“These anachronistic policies are no longer justified in light of modern medical
science,” the airmen’s complaint explains — a statement true of both discriminatory policies.