Breaking the Ground Barrier: Equal Protection Analysis of the U.S. Military's Direct Ground Combat Exclusion of Women

• Author: Jeffrey S. Dietz
• Position: Judge Advocate, U.S. Army
• Pages: 86-154

86 MILITARY LAW REVIEW [Vol. 207

BREAKING THE GROUND BARRIER: EQUAL PROTECTION

ANALYSIS OF THE U.S. MILITARY’S DIRECT GROUND

COMBAT EXCLUSION OF WOMEN

MAJOR JEFFREY S. DIETZ

The distinction between combat and noncombat is purely descriptive and

never definitive. The only reason it is made at all is to say where women

may serve or where they may not serve. The line between the two is

always drawn arbitrarily.1

I. Introduction

Heavy machine gun fire and a deadly barrage of rocket-propelled

grenades rain down on your vehicle. It is March 20, 2005, near noon in

Iraq, and you are a team leader in a military police squad, patrolling and

providing security to a sustainment convoy. The fifty enemy fighters are

ambushing your convoy using irrigation ditches and an orchard for their

well-planned complex attack. They intend to destroy your convoy, inflict

numerous casualties, and kidnap sustainment convoy drivers or U.S.

soldiers. While flames engulf the lead vehicle trapping the convoy, your

squad maneuvers around the trapped vehicles and you direct your gunner

to fire into the orchard and trench line. Even though enemy fighters

outnumber your squad five to one, you leave the safety of your vehicle to

engage them with small arms fire. While still outside the protection of

the vehicle, you use your M203 grenade launcher to further suppress the

 Judge Advocate, U.S. Army. Presently assigned as Personnel Law Attorney, Office of

The Judge Advocate General, U.S. Army, Washington, D.C. LL.M., 2010, The Judge

Advocate General’s School, U.S. Army, Charlottesville, Virginia; J.D., 2005, University

of Houston Law Center; B.S., 1998, U.S. Military Academy. Previous assignments

include Brigade Judge Advocate, 2nd Heavy Brigade Combat Team, 1st Infantry

Division, Fort Riley, Kansas 2007–2009 (Baghdad, Iraq 2008–2009); Trial Counsel, 3d

Brigade, 1st Armored Division, Fort Riley, Kansas, 2007; Chief, Operational Law, Legal

Assistance Attorney, 1st Infantry Division, Fort Riley, Kansas 2006; Squadron Personnel

Officer, Scout Platoon Leader, Tank Platoon Leader, 3d Squadron, 3d Armored Cavalry

Regiment, Fort Carson, Colorado, 1999–2002 (Bosnia, 2000). Member of the State Bar

of Texas. This article was submitted in partial completion of the Master of Laws

requirements of the 58th Judge Advocate Officer Graduate Course. The views expressed

in this article are the author’s alone and in no way represent the views of the Department

of Defense or its components.

1 BRIAN MITCHELL, WOMEN IN THE MILITARY: FLIRTING WITH DISASTER 347 (1997)

(quoting his own testimony to the 1992 Presidential Commission on the Assignment of

Women in the Armed Forces). Mr. Mitchell advocates complete exclusion of women

from the armed forces. Id. at 343–44.

2011] COMBAT EXCLUSION OF WOMEN 87

heavy attack. You and your squad leader then throw fragmentation

grenades into the trench before going over the berm and into the trench.

There you begin clearing the trench with your M4 carbine. In the

dangerously confining space of the trench, you personally kill three

enemy fighters at close range. You and your squad leader then clear the

trench and secure the ambush site.2

Your name is Sergeant (SGT) Leigh Ann Hester, and you are the

first woman to earn the Silver Star Medal in Iraq for “exceptionally

valorous achievement during combat operations.”3 More recently,

Specialist (SPC) Monica Brown earned the Silver Star Medal while

serving as a Combat Medic on a combat patrol in Afghanistan in April

2007, by pulling wounded soldiers out of a burning tracked vehicle,

treating them amid intense enemy fire, and shielding the casualties from

the enemy fire with her body.4

Sergeant Hester and SPC Brown earned the Silver Star Medal for

their heroism despite the policy on the assignment of women in the

military, titled the Direct Ground Combat Definition and Assignment

Rule (referred to by the author as the “exclusion policy”).5 The 1994

exclusion policy prohibits (1) assigning women to units that collocate

with direct ground combat units,6 (2) assigning women to direct ground

combat units below the brigade level, and (3) assigning women to a

2 Compiled from Sergeant Leigh Ann Hester’s Silver Star Award Narrative. See HomeOf

Heroes.com, U.S. Army Citations for Awards of the Silver Star in the Global War on

Terrorism, http://www.homeofheroes.com/valor/08_WOT/ss_GWOT/citations_USA-G.

html (last visited Feb. 25, 2010) [hereinafter Hester Citation] (publishing citation and

award narrative for Hester, Leigh Ann).

3 See id.

4 See HomeOfHeroes.com, U.S. Army Citations for Awards of the Silver Star in the

Global War on Terrorism, http://www.homeofheroes.com/valor/08_WOT/ss_GWOT/

citations_USA.html (last visited Feb. 25, 2010) [hereinafter Brown Citation] (publishing

citation for Brown, Monica).

5 See Memorandum from Sec’y of Def. Les Aspin, to the Sec’ys of the Army, Navy, and

Air Force et al., subject: Direct Ground Combat Definition and Assignment Rule (13 Jan.

1994) [hereinafter Aspin Memo 1994].

6 The exclusion policy permits, but does not require, the services to exclude women based

on collocation, and both the Army and the Department of the Navy, which includes the

Marine Corps, specifically prohibit women from assignment to collocating units. See

U.S. DEP’T OF ARMY, REG. 600-13, ARMY POLICY FOR THE ASSIGNMENT OF FEMALE

SOLDIERS para. 1-12 (Feb. 2008) [hereinafter AR 600-13]; see U.S. DEP’T OF NAVY, SEC’Y

OF THE NAVY INSTR. 1300.12C, CHANGE TRANSMITTAL 1, ASSIGNMENT OF WOMEN IN THE

DEPARTMENT OF THE NAVY para. 6e (14 May 2009) [hereinafter SECNAVINST

1300.12C CH-1].

88 MILITARY LAW REVIEW [Vol. 207

combat arms military occupational specialty (MOS).7 Since the exclusion

policy’s implementation, the direct ground combat experiences of

thousands of women in Afghanistan and Iraq, along with changes to

doctrine and personnel policies, have undermined the justifications for

exclusion.

Along with the contradiction inherent in the service of SGT Hester

and SPC Brown, the exclusion policy erodes the military effectiveness of

U.S. ground forces. Because they are women, the top two graduates of

the U.S. Military Academy (USMA) class of 2010, Second Lieutenants

Liz Betterbed and Alex Rosenberg,8 cannot be commissioned as infantry

officers, or as military intelligence officers assigned to an armor

battalion. Despite their demonstrated military, physical, leadership, and

academic skills, the exclusion policy deprives direct ground combat units

the leadership capabilities of not only these two newly commissioned

officers, but also every other qualified female Soldier.

In addition, the status-based exclusion policy, centered on the

assumption that women generally lack the capability for direct ground

combat, undermines the military as a merit-based organization. The

exclusion policy sends the message that women in the military are

subordinate to men due to their gender. Further, while the Army has

transformed its force to meet the needs of the current conflicts in Iraq

and Afghanistan,9 the strains of an Army at war push commanders who

do not completely understand the exclusion policy to test the limits of a

policy written for a different conflict.

On the other hand, advocates of exclusion justify the policy based on

concerns about a woman’s individual ability, how her presence

undermines unit cohesion, and the negative social implications of

sending women to combat.10 While other nations like Canada and

Denmark have opened all ground combat positions to women, the United

7 Aspin Memo 1994, supra note 5.

8 See Obama Praises West Point Cadets, Lays Out Challenges, CNN.COM, May 22, 2010,

available at http://www.cnn.com/2010/POLITICS/05/22/obama.west.point/index.html.

From West Point’s class of 2010, the Number 1 overall cadet, Liz Betterbed, and the

valedictorian, Alex Rosenberg, are women. Id.

9 MARGARET C. HARRELL ET AL., RAND NAT’L DEF. RESEARCH INST., ASSESSING THE

ASSIGNMENT POLICY FOR ARMY WOMEN 9–10 (2007) [hereinafter HARRELL, 2007 RAND

STUDY].

10 See infra Part III.B–G.