In September 2003, Captain Kellie McCoy was leading a platoon of soldiers in a four-truck convoy on an Iraqi highway between Fallujah and Ramadi when her platoon was ambushed. The lead truck hit an Improvised Explosive Device (IED) as another IED detonated behind it. The enemy rushed the convoy from both sides of the road, firing at the trucks with rifles and rocket-propelled grenades. Captain McCoy's Humvee was the only one that survived the attack; the other three vehicles were badly damaged by the bombs and by small arms fire, and several of the soldiers were wounded. With cover only from the rooftop gunner and her own M-4 carbine, Captain McCoy managed to rescue all of the men from the other trucks while under continuous fire from the attackers, eventually driving the four-seat Humvee loaded with twelve passengers to safety. For her actions that afternoon, Captain McCoy was awarded the Bronze Star. (1)
There was a time in the not-too-distant past when driving a truck between two cities was considered a routine and relatively safe military assignment. Then, as now, a unit undertaking this task would be known as a combat support unit. However, since U.S. military involvement in Afghanistan and Iraq began, the roads in those nations have proved to be anything but safe. Meanwhile, many of the more than 220,000 women who have served in these wars since 2001 (2) have undertaken the essential and dangerous job of transporting troops, equipment, and supplies along the desert highways. Military women regularly come under enemy fire in these and other "combat support" capacities. (3)
Yet, nearly two decades after the last statutory bar to women's participation in combat was removed, female service members in the Army, Navy, Air Force and Marine Corps remain barred from positions that involve direct ground combat under a Department of Defense policy. (4) This policy has remained in place even as the days of neat, congruent battlefields and easily identifiable front lines have largely disappeared. And, in response to operational realities on the ground, military women in Iraq and Afghanistan have been engaging in combat operations, sometimes under the radar of the official assignment policy. (5)
For decades, scholars and commentators have debated the constitutional, social, political and military readiness issues surrounding the combat exclusion. (6) The courts have weighed in, giving substantial deference to legislative judgment in the face of statutes and policies that, on their very faces, employ sex-based classifications. (7) This literature has paid relatively little attention to how women in the military have been impacted economically by their exclusion from combat positions.
This Article aims to assess whether distributional inequalities arise from the Department of Defense policy excluding women from direct ground combat in the U.S. military. Discovering that economic inequality does result from the policy, especially in the upper ranks, it then assesses whether any existing legal framework could remedy the disparities. Finding that none can, the Article concludes with a call for a reassessment of the policy.
Part I lays out the history of the combat exclusion and observes that regardless of the official policy, military women are in fact widely engaged in ground combat operations. Part II discusses the previous scholarly treatment of the policy and argues that the policy's discriminatory effects can be better understood by taking its economic impacts more comprehensively into account. Part III assesses the distributional effects of the combat exclusion, and Part IV asks whether the existing legal frameworks of gender discrimination or Title VII can remedy the policy's disparate impact.
History of the Combat Exclusion and Its Status Today
Women have served the U.S. Armed Forces since the Revolutionary War. (8) Before World War II, their service arose mainly in civilian support services such as laundry and food preparation. (9) In World War I, 23,000 women served in the United States and overseas as nurses in the Army Nurse Corps and Navy Nurse Corps. (10) In World War II, women served in the Women's Army Auxiliary Corps (WAAC), in the Navy program Women Accepted for Volunteer Emergency Service (WAVES), in the Marine Corps Women's Reserve and in the Coast Guard Women's Reserve. (11) They served in administrative and support capacities, as nurses, and, in smaller numbers, in up-to-then male-only positions such as air traffic controllers, mechanics, and even pilots, shuttling military aircraft from location to location. (12) All told, more than 400,000 women served in the U.S. Armed Forces during World War II. (13)
Following World War II, women were integrated into the standing armed forces of the United States with the adoption of the Women's Armed Services Integration Act of 1948. (14) Under this statute, women's positions were capped at two percent of the total force, (15) and women were explicitly barred from combat positions. (16) Interestingly, the combat exclusion provisions were not part of the original bill, but were proposed as an amendment by Representative Carl Vinson, a Democrat from Georgia, during a 1947 House Armed Services Committee hearing. (17) Though representatives of the armed services did not particularly seem to support the amendment, (18) once suggested it stuck; though the 1947 bill did not pass, the 1948 bill contained statutory combat exclusions for women in the Navy and Air Force (the Army already had a combat exclusion policy). (19)
In the several decades following the Women's Armed Services Integration Act, the role of women in the military expanded gradually. The combat exclusion's history from this point forward can be viewed in three relatively brief eras. The first runs from the abolition of the draft and transition to an all-volunteer force to the end of the Persian Gulf War; this period is described in Part I.A. below. The second runs from the early years of the Clinton administration to the immediate aftermath of the attacks of September 11, 2001, and is discussed in Part I.B. The final period began with the invasion of Afghanistan in October 2001 and continues to the present day, and is considered in Part I.C.
Filling in the Gaps: Expanding Female Enlistment, the Equal Rights Amendment, and the "Risk Rule"
The first period of women's integration into the U.S. military following World War II was characterized by minimal change through the early 1970s, followed by rapid expansion after the abolition of the draft. The two percent cap established by the Women's Armed Services Integration Act was repealed in 1967, but in 1971 women still only accounted for 1.6% of military personnel. (20) In 1973, the military underwent enormous changes with the end of the draft and the transition to an all-volunteer force. (21) As anticipated, male enlistment declined as a result of this change. Out of necessity, as well as in response to societal pressure, the military began to increase its recruitment of women (22) and to expand the positions open to them. By 1976, women comprised 5.2% of the force. (23) Both the removal of the cap, and especially the end of the draft and the recruitment measures that followed, led to an increase in the number of women in the armed forces. Though few changes were made to the combat exclusion statutes and policies during the 1970s, important changes to military personnel policy enhanced the status of women in the services. (24)
Questions of women entering the draft and combat were extensively discussed in this period during the debates over the Equal Rights Amendment (ERA),25 a constitutional amendment which, it was generally agreed on both sides, would require women to register for the draft. (26) In 1980, President Carter also proposed to begin registering women for the Selective Service System. (27) Throughout both the ERA ratification debates and the debates over Carter's proposal, proponents stressed, and opponents disputed, that neither of these changes would require women to undertake combat positions. (28)
The ERA's supporters argued that Congress was still free to ban women from combat under the War Powers Clause. (29) The House's primary sponsor of the Amendment, Representative Martha Griffiths, emphasized that the military would retain its discretion in making troop assignments. Griffiths said, "[T]he draft is equal. That is the thing that is equal. But once you are in the Army you are put where the Army tells you you are going to go. The thing that will happen with women is that they will be the stenographers and telephone operators." (30)
Meanwhile, ERA opponents imagined the Amendment's effects differently. As Phyllis Schlafly, one of the ERA's chief antagonists, put it, "the Equal Rights Amendment will positively make women subject to the draft and for combat duty on an equal basis with men. Most women's libbers admit that this is what they want." (31) At the end of the day, public concerns over female assignment to combat contributed to the ERA's demise.
Still, even after the ERA failed to ratify, women continued to serve in increasingly expanded roles in the military, deploying to three smaller conflicts during the 1980s. First, 170 female Army troops were involved in the 1983 invasion of Grenada. (32) Female troops also assisted in the 1986 air strikes on Libya. (33) Finally, 800 Army women, including two female commanders, participated in the 1989 invasion of Panama. (34)
At the same time, the Department of Defense (DoD) was reassessing its assignment policies. In 1988, the DoD adopted the "Risk Rule," which established a service-wide policy for the assignment of women. It stated: "risks of direct combat, exposure to hostile fire, or capture are proper criteria for closing positions or units to women." Positions could be closed to women where the risks of those positions were "equal to, or greater than, risks for direct...