Ban on Women in Combat Lifted: Is the Military Ready?

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Category: Civil Rights, Congress & Congressional Power, Federal Law & Legal System, Feminism, Public
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This week, Defense Secretary Leon Panetta announced that the military’s ban on women in combat will be lifted.  According to the Department of Defense, 14.6% of the nation’s military is made up of women; according to The N.Y. Times and Huffington Post, more than 280,000 of them were deployed during the Iraq and Afghanistan wars.  While those women were banned from combat, they often saw combat action nonetheless, as they were attached to battalions in positions that sometimes came under fire.  Of the more than 6,600 troops killed in Iraq and Afghanistan, 152 of them have been women

There may still be some combat positions that women will not be allowed to fill; however, the presumption seems to be that all combat positions are open to women unless a particular branch of the military requests an exception and presumably has the burden to prove why women should not be so allowed.  Previous opposition to women in combat often revolved around concerns about women’s strength and whether their presence might hurt unit cohesion.  Clearly, not all women will be physically capable of certain assignments. But then again, neither are all men.  At least now, those women who are capable and who want to fill those assignments will have the opportunity to do so.  The argument about unit cohesion is also one that had long been made against allowing gays—and African Americans before them—to serve in the military.  That argument, too, has been debunked, and since 2012, LBGT soldiers can serve openly.    

Allowing women in combat opens up hundreds of thousands of new jobs for women and allows women the opportunity to climb the ranks in the military.  Without combat leadership experience, military advancement, regardless of the soldier’s gender, is limited.  In the past, this limitation disproportionately stifled women’s military careers.  No longer. As The New York Times reported, General Martin E. Dempsey, the chairman of the Joint Chiefs of Staff, stated in a letter that the lifting of the ban ensures “that women as well as men ‘are given the opportunity to succeed.’”

Despite the public support for allowing women in combat, there are those who oppose the idea, with one retired army general calling it “a vast social experiment in which hundreds of thousands of men and women will be the guinea pigs.” The decision, he maintains, is ideologically based and not militarily based.

Such rhetoric is reminiscent of Chief Justice Rehnquist’s in Rostker v. Goldberg, 453 U.S. 57 (1981). In that case, the Court, in a 6-3 decision, upheld Congress’ refusal to require women register for the draft under the Military Selective Service Act (MSSA). The Court held that Congress’ gender-based discrimination of requiring males aged 18-26 but not females aged 18-26 to register for the draft did not violate the Fifth Amendment’s due process clause.  Chief Justice Rehnquist’s logic seems to have rested primarily on two bases: first, that the Court should defer to Congress in matters regarding the military, as Congress has broad constitutional power over national defense and military affairs; and second, that the sole purpose of registration is to provide a pool of eligible bodies for combat troops. Since women at that time were banned from combat positions, there would be no point in requiring them to register.  Chief Justice Rehnquist cited portions of Congressional testimony that stated the request to include women in the draft at that time (1981) was based out of equity rather than due to military needs, a point not completely borne out by the entire record.  Even in 1981, women were in the service and filled many necessary non-combat roles, roles that still would need to be staffed in the event that combat troops would need to be mobilized.

Justice Marshall, in dissent, began, “The Court today places its imprimatur on one of the most potent remaining public expressions of ancient canards about the proper role of women.” Rostker, 453 U.S. at 86 (Marshall, J., dissenting) (internal quotations omitted).  Justice Marshall does not elaborate on whether women are suited for combat or whether they should be drafted at all; he recognizes the question before the Court was more narrow:  it was solely whether the statute that required men to register under the MSSA but excluded women from registering violated equal protection.

The decision to allow women in combat seriously undermines the rationale of Rostker and suggests that women, too, should be required under the MSSA to register for the draft. However, that topic, and the issues it raises, is for another day.

At the heart of Justice Rehnquist’s and Congress’ decision to exclude women from registration because they were banned from serving as combat troops was their understanding that women are not suited for combat.  Somehow, incorporating women on the front lines messes things up for the military. Retired Lieutenant General Jerry Boykin recently said,

     These units can often be deployed in prolonged operations that can last for months. The physical toll is constant and wearing. During operations of this kind there is typically no access to a base of operations or facilities. Consequently, living conditions can be abysmal and base.

     There is routinely no privacy or ability to maintain personal hygiene for extended periods. Soldiers and Marines have to relieve themselves within sight of others.

Apparently only men can handle a “prolonged” operation that is physically draining and where living conditions are “abysmal and base.” Boykin has apparently forgotten that most women routinely—and more than once—handle the physically draining prolonged operation of being pregnant and bearing children. And I suppose if living conditions are “abysmal and base,” that means there is no place to plug in a hair dryer or put on makeup, much less get a manicure, which is obviously what women soldiers would need while in combat. The whole privacy issue is a none-too-subtle way of indicating that women’s monthly biology remains mysterious and frightening to men, for I can’t imagine that any person relishes a lack of privacy when relieving him or herself. 

Frankly, not all men can handle such conditions, just as not all women can.  But those who can, should be allowed to. It seems to me that it’s quite possible for co-ed troops to co-exist and they can do so more times than not without any “underlying sexual tensions,” another point that Boykin believes will undermine the effectiveness of combat troops. Suggesting that there will be “underlying sexual tensions” harms both men and women for it suggests that men’s ability to focus on a life-threatening situation is significantly reduced if not obliterated by the mere presence of a woman and it suggests that a woman’s purpose on the front line is to seduce a man or that she, too, will be distracted from her duties because of the men. This is not to say that when men and women meet in any environment that there are never “underlying sexual tensions,” for that would not be true.  But it diminishes both sexes to suggest that those tensions, if any, affect both sexes’ ability to perform professionally and properly. Surely we as humans are more than just our libidos.    

The lifting of the ban places the United States with roughly a dozen other countries that allow women to serve as part of combat units, including Australia, Canada, Denmark, France, Germany, Israel, New Zealand, and Norway.  It’s a welcome change.

Special thanks to my research assistant Greg Helding (2L) for discussing this post with me while I was drafting it.

 

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