Physical-strength Rationales for De Jure Exclusion of Women from Military Combat Positions

• Publication year: 2010

SEATTLE UNIVERSITY LAW REVIEWVolume 34, No. 1FALL 2010

ARTICLES

Physical-Strength Rationales for De Jure Exclusion of Women from Military Combat Positions

Maia Goodell(fn*)

I. Introduction

In his first State of the Union Address, President Obama pledged, "This year, I will work with Congress and our military to finally repeal the law that denies gay Americans the right to serve the country they love because of who they are. It's the right thing to do."(fn1) Since its foundation, our country has struggled with the legal and social challenge of defining the "right thing" with respect to a perceived tension between a desire for military effectiveness on the one hand, and concerns over the inequality arising from blanket rules classifying certain citizens as ineligible for the privilege of citizenship that is military service because of "who they are" on the other.

Through World War II, the U.S. military built up during wars and narrowed at their close, returning many "citizen soldiers" to civilian life. From the earliest days of our military, the post-war narrowing of forces restricted military service opportunities on the basis of race, sex, and other classifications.(fn2) In 1792, at the end of the Revolution, Congress restricted militia service to "free able-bodied white male citizens."(fn3) Even after World War II, some military leaders resisted racial integration, citing concerns similar to those advanced today about the integration of gay service members; for example, General George Marshall, the Army Chief of Staff during the early 1940s, stated, "[E]xperiments within the Army in the solution of social problems are fraught with danger to efficiency, discipline, and morale."(fn4)

Military sociologists document a shift between World War II and the present day, where the buildup of citizen soldiers during wartime is now replaced with a standing force (of variable size) of professionals serving their country.(fn5) Perhaps in part as a result of this transition and in part as a result of the evolution of social attitudes, society and the military with it began to find earlier exclusions unacceptable. In 1948, President Truman ordered the military to allow African-American men to serve on equal terms.(fn6) Years of de facto segregation and discrimination followed, but some argue the military ultimately achieved the integration of African-Americans more successfully than civil society, or indeed drove desegregation in nonmilitary areas.(fn7)

President Obama now calls to repeal another exclusion, the law prohibiting service by those who are openly gay, termed "Don't Ask Don't Tell" (DADT).(fn8) Proponents explained DADT as a compromise between full repeal and full enforcement of the ban on gays in the military.(fn9) By changing the regulation into a statute, however, DADT removed the ability of the military and Department of Defense to set evolving policy on this issue.(fn10) By all accounts, thousands of service members, disproportionally women, were still discharged for homosexuali-ty.(fn11)

The segregation of African-Americans and exclusion of gay Americans have appropriately come under fire, but another rule has remained oddly under the radar: the exclusion of women from combat. About the same time DADT became law, Congress and the military debated combat-exclusion rules for women.(fn12) The history of these rules combines elements of the history of racial segregation and of the ban on gays in the military, as well as unique features. Women served in varying numbers and capacities in all of the U.S. wars.(fn13) In World War II, a significant number of women served in segregated auxiliary corps.(fn14) At the close of World War II, Congress passed a law that abolished the separate auxiliary corps and integrated women into the regular force, but imposed new, draconian restrictions on women's service.(fn15) Women were excluded from combat in aircraft and naval vessels; other provisions restricted promoting women and placed a 2% cap on female personnel.(fn16) Meanwhile, the Army excluded women from combat roles by internal regulation, which was later justified on the basis of the statute.(fn17)

Some of the restrictions were lifted in the late 1960s and early 1970s,(fn18) but a few years later, Congress passed a law reinstating registration for the draft for men only.(fn19) In 1981, in Rostker v. Goldberg, the Supreme Court upheld the male-only draft against an Equal Protection challenge that argued the draft discriminated against men.(fn20) The Court relied on the combat-exclusion laws to hold that women were not "similarly situated" to men with respect to military service.(fn21) Neither the Court nor the plaintiffs questioned the legality of the combat-exclusion laws themselves.(fn22)

Recent years have seen further integration of women into the military, but the military retains a core set of de jure restrictions on women's service. During the waning years of the first Bush Administration,(fn23) a Presidential Commission on the Assignment of Women in the Armed Forces studied opening combat positions to women and recommended certain restrictions be lifted, including the ban on women in combat ships.(fn24) Under President Clinton, Congress went further and repealed statutes prohibiting women's service on combat ships and aircraft.(fn25)

The next year, the Clinton Administration's Secretary of Defense, Les Aspin, promulgated new rules. Under these newest rules, restrictions prevent women from serving in about 20% of military jobs.(fn26) First, women cannot serve in "units below the brigade level whose primary mission is to engage in direct combat on the ground."(fn27) Second, services may exclude women in other circumstances, including "where job related physical requirements would necessarily exclude the vast majority of women service members."(fn28)

While women are serving in greater numbers and in more military positions than ever before, the combat exclusions continue to confer on women a different legal status than men. Recent decisions still cite the continued de jure combat exclusion as the basis for continuing to uphold the male-only draft registration.(fn29) Further, like the DADT compromise, the new opportunities for women were tempered with new statutory limitations: Congress passed a series of laws beginning in 1993, which required the Secretary of Defense to provide notice to Congress if any of these restrictions changed.(fn30)

It was in this landscape that I, then an undergraduate, joined the Navy to become a Surface Warfare Officer. The Navy assigned me to be one of the first women on the newly integrated combatant ships in the mid-1990s. Since then, the military landscape has changed dramatically: We are fighting two wars. Furthermore, women are a higher percentage of the Armed Services than ever.(fn31)

In today's military, despite the continued de jure restrictions, the armed forces have included increasing percentages of women in the ser-vices,(fn32) each branch choosing its own strategy for doing so.(fn33) The Army has quietly found ways around the restrictions that avoid triggering the congressional-reporting requirement.(fn34) A 2004 draft Army presentation, apparently leaked to the conservative policy advocacy Center for Military Readiness, noted that the "pool of male recruits" was "too small to sustain" the force as currently configured and explored options to expand the use of women in combat positions. (fn35) Some of those options would require congressional notification and some would not; no notification has been forthcoming, but many reports indicate women's increased roles.(fn36) With this lack of legal recognition, women experience real consequences; for example, women veterans report that society and even the Department of Veterans Affairs often assume women cannot have issues associated with combat service, such as post-traumatic stress disorder.(fn37)

Going a different route, the Navy provided formal notice to Congress on February 19, 2010, that women would serve in submarines.(fn38) After Congress considered the notice, the Navy announced it would begin phasing in billets for female officers (but not enlisted women) on submarines: "There are capable women who have the interest, talent, and desire to succeed in the submarine force. Maintaining the best submarine force in the world requires us to recruit from the largest possible talent pool."(fn39)

Under the Constitution's Equal Protection Clause, the government must justify classifications, like the combat-exclusion policy, that limit its citizens' privileges based on "who they are." The first Part of this Article examines applicable law in the United States as well as challenges to combat-exclusion laws overseas, concluding that it is well-established that beliefs about women's proper role in society are inadequate justifications for de jure classifications. In Part II, the Article turns to the main justification for excluding women that differs from the justifications advanced for excluding African-American or gay men: physical strength. Drawing on studies of vocational testing, athletics, and military fitness, and using the conservative commentators who have made the physical-strength argument most explicitly as a counterfoil, this Article examines four problems with the physical-strength rationale: stereotyping, differential training, trait selection, and task definition. Each of these problems exposes a...