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MILITARY

US Court Blocks Healthy Poz Airmen’s Discharge Categorical policy toward service members with HIV “arbitrary and capricious,” judge says BY ARTHUR S. LEONARD

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federal district court in Virginia has refused to dismiss a lawsuit challenging the Air Force’s refusal to allow healthy airmen living with HIV to continue serving and deploying to combat zones. At the same time, the court issued a preliminary injunction blocking the plaintiffs’ discharges pending a final ruling on the merits in the case. Judge Leonie M. Brinkema’s February 15 ruling found that the plaintiffs — two airmen living with HIV as well as OutServe-SLDN, an organization for LGBTQ service members and veterans that is representing other military personnel living with HIV — have “made a strong preliminary showing that the deployment policy applied to asymptomatic HIV-positive ser-

DEFENSE.GOV

Shortly after taking office, President Donald Trump and his first secretary of Defense, James Mattis, reversed course and began systematically dismissing military personnel living with HIV, even if their infection was under control.

vice members cannot withstand rational basis review” — the most lenient judicial standard applied to

laws and government policies. Early in the Trump administration, it became clear that the Pen-

tagon would reverse course and systematically dismiss uniformed personnel living with HIV, regardless of the state of their health. Though the government has not said so, the suspicion is that this decision was motivated, at least in part, by a desire to avoid the costs of providing expensive anti-HIV medications. The situations faced by the two plaintiffs, who are proceeding anonymously as Richard Roe and Victor Voe, illustrate the bizarre anomalies involved here. Both men enlisted shortly after the Don’t Ask, Don’t Tell policy ended in 2011 and had very successful careers until they were diagnosed as HIV-positive in 2017. Though both men have been compliant with their treatment regimens and have undetectable viral loads and no measurable

➤ POZ SERVICE, continued on p.15

LEGAL

Palm Beach Conversion Therapy Bans Win Round One District judge denies practitioners preliminary injunction OKing talk therapy for now BY ARTHUR S. LEONARD

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n February 13, a federal district judge denied a motion by two Palm Beach County psychologists to block enforcement of the county’s ordinance forbidding licensed health care practitioners from providing “sexual orientation change efforts,” also commonly known as “conversion therapy,” to minors. Judge Robin L. Rosenberg’s refusal of a preliminary injunction extends as well to a similar ordinance enacted in the Palm Beach County community of Boca Raton. She concluded that the plaintiffs failed to show they were likely to prevail on their argument that the measures violate their First Amendment free speech rights. Rosenberg appears to be the

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first district judge to take on recent Supreme Court rulings that might make it more difficult for governments to defend these laws against constitutional attacks. Just weeks ago, a federal magistrate judge in Tampa recommended that the district court there grant a preliminary injunction against enforcement of Tampa’s ordinance banning conversion therapy practitioners while the litigation proceeds. The district court has not yet ruled on that recommendation. Magistrate Judge Amanda Arnold Sansone’s recommendation in the Tampa case was based heavily on the US Supreme Court’s ruling last June in National Institute of Family and Life Advocates (NIFLA) v. Becerra that a California statute requiring clinics to advise clients about the availability of state-financed abortion services vi-

olated the clinics’ First Amendment rights. Justice Clarence Thomas’ opinion for the court specifically rejected assertions by two federal appeals courts, in cases regarding conversion therapy bans, that “professional speech” is entitled to less constitutional protection than other speech. Sansone construed the Supreme Court’s ruling to require Tampa’s ordinance to be held to a “strict scrutiny” standard and concluded that the plaintiffs were likely to prevail, at least regarding the “talk therapy” that the plaintiffs claimed to be providing their patients. Without explicitly mentioning Sansone’s analysis, Rosenberg rejected it, concluding that the question of what standard such ordinances should be held to is “unsettled” at best, and that the cases Sansone relied on do not neces-

sarily lead to the conclusion she reached. Rosenberg, in contrast, applied different levels of judicial review to the ordinances. Using the least demanding level of review, “rational basis,” she easily rejected the contention that the city and county were acting irrationally or without justification in passing the ordinances. She devoted significant space to summarizing the evidence considered by legislators about the damage conversion therapy can inflict on minors as well as its lack of effectiveness in changing sexual orientation. Minors, she noted, are in no position to give informed consent to the therapy. Alternately applying “heightened scrutiny,” often used in evaluating free speech challenges to laws

➤ CONVERSION THERAPY, continued on p.15 February 28 - March 13, 2019 | GayCityNews.nyc

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