When Major Mary Jennings Hegar was serving as a captain in Afghanistan, her aircraft was shot down by enemy fire while she and her crew were evacuating injured soldiers. Though injured by a bullet that penetrated the helicopter, she completed the rescue mission while under fire on the ground — and received the Purple Heart and the Distinguished Flying Cross for “outstanding heroism and selfless devotion to duty.”
One thing Hegar, who has served three tours in Afghanistan, did not do: get credit for serving in combat. It is illegal for women to be in official combat positions — and to get the benefits that come with them. Hegar and three other servicewomen filed a lawsuit in federal court in San Francisco on Nov. 27 in a long-overdue challenge to the Pentagon’s nonsensical and unconstitutional ban.
Women have always served in the military (and lost their lives), but Congress and the Pentagon have put an array of restrictions on them. In 1988 the military adopted the “risk rule,” which allowed women to be kept out of even noncombat positions if they were likely to be at risk of being fired on or captured. In 1994 it dropped that rule, but then Secretary of Defense Les Aspin adopted the ban on placing women in official ground combat positions, after a poll showed weak public support for allowing women to volunteer for combat.
Many military women — who constitute 14% of the 1.4 million active members of the military — object to the policy because it blocks them from applying for some 238,000 jobs and excludes them from certain promotions. It is particularly unfair because it doesn’t protect women in service. Fully 85% of women who have served since Sept. 11 report having served in a combat zone or an area where they received combat or imminent-danger pay, according to the lawsuit, and half reported being involved in combat operations. At least 860 female troops have been wounded and 144 killed in the Iraq and Afghanistan wars.
In fact, as Hegar’s suit argues, the ban actually puts women in greater danger. In many cases, women fight alongside men in “female engagement teams” that endure the same conditions, but because they are deemed not combat-eligible, they may not have received proper training.
The ban does another bad thing: drive talented women out of service. Hegar says she is transitioning out of the Air National Guard and into a Reserve Liaison position because she is excluded from jobs she would like to apply for. Another woman who is suing, Captain Alexandra Zoe Bedell — who was deployed twice to Afghanistan — left active duty last year in part, she says, because of the combat-exclusion policy.
The women are challenging the ban as a violation of the 14th Amendment guarantee of equal protection under the law. In a case striking down the Virginia Military Institute’s ban on female students, the Supreme Court said that to justify government discrimination on the basis of sex, there must be an “exceedingly persuasive justification” for the policy. And the justification cannot “rely on overbroad generalizations about the different talents, capacities, or preferences of males and females.”
It is hard to see how the Pentagon could meet this burden. Clearly, women are capable of taking challenging, dangerous combat assignments, because — as the careers of Hegar and others like her have shown — they are doing it now. The Pentagon’s policy is based on “outdated stereotypes of women” — just the sort of thing the Constitution forbids.
But the Pentagon should not wait for the courts to order it to treat female service members equally. There can be little doubt that a court will eventually do just that — and little doubt that, in the very near future, the no-combat rule, like the racial segregation of troops and “Don’t ask, don’t tell,” will seem like an ancient relic of unenlightened times.