Pentagon Sued by ACLU Over Discrimination Against Women in the Military

Watch out, Phyllis Schlafly. After years of limited service, career opportunities for women in the military may finally broaden. (Pun semi-intended.) On Tuesday, the American Civil Liberties Union (ACLU), in conjunction with the ACLU of Northern California and the law firm Munger, Tolles & Olson, announced that they will suing the Department of Defense regarding the exclusion of women from many military combat positions, including infantry, artillery, and special operations in ground combat units.

According to the ACLU, "Women make up more than 14% of the 1.4 million active military personnel, yet the rule categorically excludes them from more than 200,000 positions, as well as from entire career fields. Consequently, commanders are stymied in their ability to mobilize their troops effectively." Servicewomen are also often at a disadvantage when it comes to obtaining training, promotions, and otherwise competing with men within the military.

The plaintiffs in the new federal lawsuit, Hegar, et al. v. Panetta, alleged that the Department of Defense's official policy which bars women from ground combat units (known as "combat exclusion policy") is unconstitutional. 

The complaint states, "No United States statute requires this categorical exclusion of women. Instead, the DoD has itself decided to close these positions to servicewomen solely because they are women. The combat exclusion is based on outdated stereotypes of women and ignores the reality of the modern military and battlefield conditions." 

The four plaintiffs in the case have all served in combat or led female troops on missions with infantrymen in Iraq or Afghanistan. Major Mary Jennings Hegar, an Air National Guard search and rescue helicopter pilot awarded a Purple Heart in 2009, wrote an editorial for the ACLU website detailing her experiences flying Medevac missions in Afghanistan.

Of a mission in 2007, she notes, "You would never have guessed that before our first flight my Aerial Gunner had to be ordered to fly with me over his objections to flying into combat with a woman. When I confronted him about it, he said that he didn’t think I could carry my weight in an evasion situation if we were to find ourselves shot down over enemy lines. He used the combat exclusion policy as substantiation for his prejudice, stating that if women were his equal then the Air Force would let them be Pararescuemen and Combat Controllers (two jobs closed to women then and now). He didn’t take into consideration the fact that I had become somewhat of an expert on the local area, learning some of the language and landmarks, or that I was the only expert marksman (in both of my weapons) on the crew."

"Instead of seeing my strengths and how I could contribute to an evading crew, he only saw my gender."

The other three plaintiffs — Captain Zoe Bedell (U.S. Marine Corps Reserve), First Lieutenant Colleen Farrell (U.S. Marine Corps), and Staff Sergeant Jennifer Hunt (U.S. Army Reserves) — experienced similar impediments in their own careers due to the combat exclusion policy. In Farrell's case, she and her fellow women Marines were not recognized as official members of the battalion with which they worked, and were forced to return to their main forward operating base every 45 days. Traveling back to the base put the women Marines and their fellow battalion members in danger, and reduced the efficacy of their service. 

Women in the military are hampered by the combat exclusion policy in many ways, including being barred from certain combat arms positions and being prohibited from applying to certain schools such as infantry schools. The ACLU concludes, "combat exclusion policy sends a clear message to the world that women are not capable of serving their country to the same extent as men."

Combat exclusion policy was originally instituted almost 20 years ago, and was intended to limit women's exposure to combat. As the DoD noted in February, "The modern battlespace, however, without clearly defined boundaries, logically requires that the Department revisit this prohibition."

The role of women in the military has already been addressed by the Department of Defense once this year. In February, the DoD changed its assignment policy so that women could occupy positions co-located with ground combat units, in addition to opening up positions for women at the battalion level in certain ground combat units. These changes opened up 14,325 new positions for women in the military.

Secretary of Defense Leon Panetta explained, "Women are contributing in unprecedented ways to the military’s mission.  Through their courage, sacrifice, patriotism and great skill, women have proven their ability to serve in an expanding number of roles on and off the battlefield. We will continue to open as many positions as possible to women so that anyone qualified to serve can have the opportunity to do so.”

In an email to U.S. News on Tuesday, Panetta's spokeswoman Elieen Lainez commented, "The services will continue to review positions and requirements to determine what additional positions may be opened to women. Our goal is to ensure that the mission is met with the best qualified and most capable people, regardless of gender."

In conjunction with February's DoD decision, the ACLU's suit may open up further career opportunities to women in the military. As women's military service is reconsidered, and new military strategies continue to emerge, arguments like Schlafly's against women in the military — which can be summed up, in her own words, as "women do not want repeal" — will become increasingly irrelevant.

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Sam Meier

Samantha Meier serves as the Identities editor at PolicyMic, where she writes on activism, gender, and new media. Sam was profiled in the New York Times for co-founding Sex Week at Harvard, and is currently working on a book about women and underground comix. Originally from Flagstaff, Arizona, she currently lives in New York.

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