Viewpoint: Barring Women from Combat Is Unconstitutional

As a new lawsuit shows, the ban doesn't protect women in service from physical danger, and it denies them benefits they deserve

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ADEK BERRY / AFP / Getty Images

A USN Hospital Corpsman assigned to the female engagement team from 1st Battalion 7th Marines Regiment works out at Forward Operating Base Jackson on June 15, 2012.

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.

(MORE: Petraeus Scandal: Are We Guilty of a Double Standard?)

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.

(MORE: Why Are Women Biased Against Other Women?)

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.

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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.

MORE: Women Should Be Required to Register with the Military Too

47 comments
BillPearlman
BillPearlman

A few problems here that an effete intellectual from Yale law school might fail to consider. First, I predict that the physical requirements will be lowered. It's happened in the NYPD and FDNY. What they'll do is gender norm it so the percentage of women in the seals, the marines, the green berets meets target levels. Second, romantic entanglements. Will an officer send his girlfriend on a mission with a high probability of getting killed, will she walk point. Third, the Israeli experience was that men will look to protect the woman to the detriment of the mission. Big difference between the occasional woman flying a helicopter and marine mountain combat units. Despite what people who have never been in the service seem to think. 

apryor1985
apryor1985

It's amazing when men are commiting suicide because of their experiences in Iraq and Afghanistan that female officers reduce killing and dying to "career opportunity." 

esoong97
esoong97

Many of you are suggesting that women in general are physically unfit or less suitable for warfare than the average male. This is true. It is evident through many studies that structurally, women lack the strength that male bodies are designed to have. To assume that male soldiers would be "forced to 'help' fellow women soldiers with their load and wait for them [while] they get behind on a foot patrol" is a generalization based on the idea that as a gender, women are less suitable for combat. What many of you fail to realize is that women are not asking for standards to be lowered. They are not asking that the military take in a certain number of female recruits regardless of their qualifications. They are simply asking that women be given the opportunity to prove themselves adequate. In the event that a woman who is willing to serve can meet regulated physical standards, should she not be formally recognized as a partaker in direct combat and given the same training and evaluation opportunities that men receive, rather than place herself in a position of high risk without the same level of preparation as her male counterparts? The law is behind on this issue. Women have been risking and losing their lives in combat without ever being technically recognized as members of direct combat military units. They will continue to sacrifice and defend this country, and it is up to the governing law to step up and provide them with the necessary training and preparation to minimize the risk factor in their endeavors. With or without it, female soldiers will continue to lay down their lives.


MatthewWilliamMillett
MatthewWilliamMillett

Barring women from combat has more to do with out enemies than anything else. Woman are often subjected to far more cruelty by our enemies especially in muslim countries or countries that have a very negative stance towards women in general. The U.S military does not want to have to report to family members that their daughter was gang raped to death while the male prisoners were just mildly beaten. If you disagree thats your right but having women in combat would not only have a negative impact on the men psychologically it might even put them in danger because men often take unnecessary risks to protect woman due to evolutionary predisposition to seeing woman as needing protection. Women I am sure are fully capable of doing well in combat however in todary's wars I would see their impact on male soldiers to be far more negative and political correctness gets thrown out when lives are on the line.

Medic5392
Medic5392

Total and absolute fabrication. She did and has credit for being in combat, she is not on the ground in the infantry or SOF. The author should at least go read up on the topic before repeating things that are not true. Go check and see what awards she has and then come back and tell me if she got "credit" for combat or not. The ignorance and almost outright lies by some on this topic are breathtaking. 

Whatyousay?
Whatyousay?

Any woman who wants to put her big girl panties on and march into the battlefield has my full consent. Getting shot at just seems like such an adventure to me, especially if you have something to prove. Let's put ALL women on the front lines and make them happy, once and for all.

BillPearlman
BillPearlman

The only people, and I mean the only people, who should have a say on this are the guys in the front lines.

rivnav
rivnav

It will come down to men soldiers being forced to 'help' fellow women soldiers with their load and wait for them when they get behind on a foot patrol.

Sparta1911
Sparta1911

There are so many physical differences between men and women that need to be considered before making a decision.  First off, it's a very rare woman who can ruck at the same pace and carry the same load as a man.  I've heard of very few women who can ruck/patrol alongside their male counterpart carrying the exact same load.  Now I'll be the first to admit that this has been said before when the discussion to desegregate the Armed Forces came about following WW2 but unlike that case, women and men are physically and genetically different regardless of ethnic background.  Now if a woman can pass the same standards as a man (APFT, Ranger School, etc.), I'll be the first person to follow her into combat but if we change the standards to allow women to serve in combat roles, we are doing a disservice to all parties involved.

RonnieMatrix
RonnieMatrix

@TIME @adamscohen @TIMEIdeas The Pentagon should change those outdated stereotypical laws regarding women in the military.

RachaelLefler
RachaelLefler

Wholly agree. We can't expect women to get equal recognition for their service until they can occupy every position a man can. And like the author pointed out, they are being put into combat scenarios without the proper training just based on their gender, which is deplorable.

sjsamuel71
sjsamuel71

Ah now the fig leaf of the constitution. Agreed as per the blind yardstick of equality, an argument for equal status on the battlefield exists. But should we not be asking other relevant questions such as (1) is it really necessary/important for women (or for that matter men) to get into combat, (2) are all combat and killing constitutional, (3) is this really an equality debate, or is it a convenient ruse to induct more personnel into the armed forces, (4) what kind of society or value systems is Mr. Cohen rooting for when he makes such an argument—meaning would it lead to a sane, peaceful and life-enhancing future.And apart from the military women Mr. Cohen has got in touch with, has he really spoken to other women about what they feel about joining the armed forces, about war and killing and other such issues. I doubt it.

Fla4Me
Fla4Me

As this article points out (and there are many examples) women are already in combat.  There is no reason why women should not be recognized as combat troops.  The only issue is the problem some men have in accepting the idea of women in combat.

Gopic
Gopic

@TIME @adamscohen @TIMEIdeas Unconstitutional? Woman have a place in the military, not on battlefield. Can be a detriment to the mission.

bojimbo26
bojimbo26

I hope Major Mary wins the lawsuit .