Jeffrey WangAP Government B

Equal Opportunity: Why the U.S. Military Should Rethink its Combat Exclusion Policy

In 2011, a joint poll by The Washington Post and ABC News found that a majority—

73%—of Americans favoured permitting women to serve in ground units that engage in close

combat. This majority was shared across a number of demographics interviewed; 73% of women

and 72% of men supported giving direct combat roles to women, as did 80%, 62%, and 73% of

self-described Democrats, Republicans, and independents, respectively.1 Women in the military

have been prohibited from serving in designated direct combat roles since 1994, when the

Pentagon declared that ‘women shall be excluded from assignment to units below the brigade

level whose primary mission is to engage in direct combat on the ground,’ a statement that has

since become known as the ‘combat exclusion policy.’2 The very fact that the policy is nearly

twenty years old belies its antiquity and incompatibility with the role of women in today’s

society. In the case at hand, this court must determine whether this policy should be struck down,

allowing servicewomen such as Maj. Hegar, Marine Capt. Bedell, Army Staff Sgt. Hunt, and

Marine 1st Lt. Farrell to serve their country to the same extent as their male comrades. For the

following reasons, the aforementioned servicewomen and the Service Women’s Action Network

urge the elimination of the combat exclusion policy.

Before any contentions are introduced, it is worth noting that the Government would seek

to argue that the court’s decision ‘should be guided by the Supreme Court decision in Rostker v.

Goldberg,’ as noted in its motion for summary judgment. In Rostker, the Court rejected a claim

that the Military Selective Service Act—which requires only the registration of males and not

females for the draft—unconstitutionally instituted gender-based discrimination, deferring instead

to the judgement of Congress. However, this court should realise that said ‘judgement’ upon

which the Rostker decision was predicated is, in fact, the very combat exclusion policy before us

today, as noted by Justice Rehnquist: ‘[Since] women are [by statute] excluded from combat,

Congress concluded that they would not be needed in the event of a draft.’3 Had women been

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allowed in combat roles at the time of the case, there is a definite possibility that the Court may

have decided differently, especially considering that Congress’s judgment appears to be the sole

reason for the Court’s ruling (as shown by Rehnquist’s assertions in the majority opinion that

Congress is entitled to ‘focus on…military need, rather than “equity”’ and that the District Court,

in declaring the Selective Service Act unconstitutional, ‘exceeded its authority in ignoring

Congress’ conclusions’).4 Therefore, since the case before us deals with the very heart of the

Rostker decision, the apparent ‘precedent’ of deference to Congress on matters of military affairs

that Rostker appears to set is, in this particular case, unreliable and moot.

First of all, women have been serving in the military for decades—they were granted

military status in 1901 with the creation of the Army Nurse Corps, and in 1948 were given a

permanent place in all military branches—yet the combat exclusion policy has prevented them

from being presented with the same opportunities as those presented to servicemen.5 The

government would contend that this is false, as there is a distinction between ‘returning fire’ and

‘offensive close combat.’ This is patently untrue. In this modern era, unexpected forms of

warfare such as IEDs, long-range missile strikes, and green-on-blue insurgent strikes render such

a distinction non-existent and meaningless—attacks can occur anywhere and anytime. Whether a

soldier is engaging in an offensive or defensive action is irrelevant; semantic technicalities aside,

they are for all intents and purposes identical actions that both involve, at the most basic level,

exchanging fire (and all risks entailed therein). Having established this, it is obvious that—

thanks to this nonsensical distinction propagated by the combat exclusion policy—women who

have engaged in combat have not been credited with the experience and opportunities that they

deserve simply because their actions have not been considered ‘combat experience.’ In the

landmark case United States v. Virginia, 518 U.S. 515 (1996), the Supreme Court ruled that a

gender classification—which reserved an education at Virginia Military Institute for men only—

was unconstitutional because of the ‘opportunities and advantages withheld from women who

want[ed] a VMI education and [could] make the grade.’6 Similarly, there exist many

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servicewomen who are just as qualified for promotions and postings as their male counterparts

but who cannot obtain said recognition because the combat exclusion policy has either prevented

them from acquiring combat experience or disregarded the combat experience they have acquired

as ‘returning fire.’ This is without a doubt a valid issue that has been raised before; in 1975, the

Supreme Court decided in Schlesinger v. Ballard, 419 U.S. 498, that, due to the inability of

female naval officers to be assigned to aircraft or Navy vessels engaged in combat missions, it

may be concluded ‘quite rationally...that women line officers had less opportunity for promotion

than did their male counterparts.’7 For example, Ann Dunwoody—made the first female four-star

general in 2008—worked her way up through logistics.8 Had she held a combat position such as

in infantry command, it is highly likely that she would have achieved her rank much more easily.

In short, in order to rectify the withholding of promotion opportunities from servicewomen,

female soldiers must be allowed to take combat roles.

Secondly, the Government has offered no ‘exceedingly persuasive justification,’ to use

the terminology of United States v. Virginia, for the usage of a gender distinction.9 The

Government posits that national security would be compromised by the recruitment of women,

which would supposedly disrupt the cohesion of the military and have little positive effect despite

a high cost. Both of these assertions are unfounded and moot. With regard to the former, one

argument is that since men are conditioned to be protective of women, the presence thereof will

distract men from the mission at hand. This is, at best, a manifestation of sexism: all members of

an effective military should be protective of each other regardless of gender, and it is ridiculous to

refer to the act of servicemen defending servicewomen as lack of focus while lauding acts of

servicemen defending each other as bravery and loyalty. Furthermore, it is training, not gender,

that most affects the effectiveness of a soldier, and in a combat situation it is this deeply

engrained training and the primal instinct for survival—not a perception of gender roles—that

matters most; as plaintiff Maj. Hegar writes regarding her experience as a helicopter pilot in

Afghanistan that earned her a Purple Heart and Distinguished Flying Cross with Valour, ‘At no

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point during this encounter was my gender ever even considered to be a factor in any decision or

action taken by any member of my crew. We were warriors on a battlefield with one goal in

mind: get everyone - EVERYONE - home safe.’10 As for the high cost and low effectiveness,

both pieces of that allegation can be safely disregarded. The cost of recruiting women to combat

positions would be negligible, given that training regimens and technicalities such as restrooms

and hygienic details (present for women in non-combat roles) are already in place; furthermore,

as Justice Marshall wrote in his dissent in Rostker, ‘the administrative convenience of employing

a gender classification is not an adequate constitutional justification under the [Craig] test.’11 The

claim of low effectiveness can be disproven simply through the actions of servicewomen such as

Maj. Hegar who have found themselves in combat situations; moreover, given that the military

requires that all combat troops pass a standard PFE (personal fitness examination), it goes without

saying that any servicewomen who qualify for combat duty will without a doubt be just as

qualified as their male counterparts. In sum, it is clear that the Government’s reasons for

instituting the combat exclusion policy are in no way sufficient to justify it.

Finally, in accordance with the precedent of intermediate scrutiny set in Craig v. Boren,

the Government must present an important objective in order to justify its use of a gender

classification; the objective it maintains in this case is unnecessary and therefore moot.12 Said

objective in this case is undoubtedly the efficiency and effectiveness of the military; the

Government contends that recruitment of women would reduce the functionality of the armed

forces. However, United States v. Virginia established that ‘[Generalizations] about “the way

women [are]”…no longer justify denying opportunity to women.’13 As part of its argument, the

Government has claimed that women possess ‘lower average upper body strength and higher

rates of stress fractures;’ however, these certainly constitute generalisations about the physical

ability of servicewomen and are thus rendered invalid as justification. Moreover, in a more

practical context, the physical ability of women in combat can be proven by the aforementioned

existence of PFEs, which ensure that regardless of the ‘lower average upper body strength’ of

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females, those who qualify for combat duty evidently possess the required strength to do so;

additionally, the percentage of military recruits who suffer from stress fractures during physical

training—5%—is low enough that a blanket exclusion based on it would be manifestly unfair.14

There is no definitive need for the exclusion of women from the military in order to make it a

more effective institution, simply because the addition of women does not detract from the ability

of the armed forces. As proven earlier, servicewomen will not detract from the cohesion of the

military, nor do they raise costs an unacceptable amount. The experiences of women in combat,

moreover, prove that they can be just as effective as men; the plaintiffs are living proof of this:

Maj. Hegar ‘returned fire and successfully completed [a] rescue mission while under fire,’ Staff

Sgt. Hunt received the Purple Heart after her Humvee was struck by an IED, and Cpt. Bedell and

1st Lt. Farrell have served to lead and train members of the Marine’s F.E.T.’s (Female

Engagement Teams). These F.E.T.’s themselves are excellent examples of the effectiveness of

women in combat zones; though the DoD would continue to classify their actions as ‘returning

fire’ rather than as direct ground combat, these all-female teams have without a doubt been in

combat and have been targeted by IEDs and hostile fire with decidedly positive results.15

Furthermore, the presence of women does have its benefits; the civilian population is more likely

to accept the presence of servicewomen than servicemen, and women tend to be more cool-

headed in stressful situations and are thus better suited to roles that require quick decision-

making.16 In review, the Government’s objective in instituting the combat exclusion policy is

rendered irrelevant and unnecessary by the exemplary actions of servicewomen who have served

in combat, and if the objective is unnecessary, then so too is the means of achieving it.

In conclusion, this court should strike down the combat exclusion policy for a number of

reasons. Women are already serving in combat roles without receiving the recognition and

promotions that is their due, a blatant withholding of opportunities that is unconstitutional by

United States v. Virginia. The Government has not given sufficient proof for the upholding of its

gender classification, and what reasons it has given have been proven to hold little substance.

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Finally, the actions of women who have already experienced combat are solid proof that the

Government’s objective of an effective military is not necessary. Generalised perceptions of

gender are no rationalisation for the exclusion of servicewomen from the opportunities they

deserve.

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Works Cited

1. “Most Americans back women in combat roles,” The Washington Post,

http://articles .washingtonpost.com/2011-03-16/local/35207853_1_military-leadership-

diversity-commission-combat-units-combat-roles.

2. “Women at War,” The New York Times, http://www.nytimes.com/2009/10/21/opinion/21iht-

edbroadwell.html.

3. Supplement 224.

4. Ibid.

5. “Timeline: Women in the Military,” DoSomething.org, http://www.dosomething.org/

tipsandtools/timeline-women-military.

6. Supplement 231.

7. Justice Stewart, Schlesinger v. Ballard (1975).

8. “Women in War,” NPR, http://www.npr.org/2011/02/21/133818218/women-in-war-ive-lived-

out-there-with-the-guys.

9. Supplement 231.

10. “Women Warriors Are On the Battlefield. Eliminate Outdated, Unfair Military Combat

Exclusion Policy,” ACLU, http://www.aclu.org/blog/womens-rights/women-warriors-are-

battlefield-eliminate-outdated-unfair-military-combat.

11. Supplement 226.

12. Ibid. 220.

13. Ibid. 230.

14. “Stress fracture injury in young military men and women,” PubMed.gov,

http://www.ncbi.nlm.nih.gov/pubmed/15336620.

15. “Women at War.”

16. “Women in Combat Pros and Cons,” Sisters in Arms, http://sistersinarms.ca/history/women-

in-combat-pros-and-cons/.