Law School Team to Fight U.S. Ban on Women in Combat, Draft

More than 200,000 women have served in the recent conflicts in Iraq and Afghanistan, and over 100 have died in Iraq alone. But frontline combat duty, with its risks and rewards, is not officially an option for American women serving in the military. A group of University of Virginia School of Law students, a professor and a graduate want to change that and are aiming to seek out litigants to win women the official right to serve in combat roles — and to qualify for the draft as well.

"Our goals are to gain official recognition for those women who have been placed in harm's way in the course of line of duty, and to expose a gender classification that is based on archaic stereotypes and is unconstitutional," said second-year law student Kyle Mallinak. "We don't just have to speculate about how women would perform in combat conditions. We know now that they've performed, and performed well."

Mallinak, who co-wrote an op-ed on the subject in April with University of Virginia law professor Anne Coughlin, has joined efforts with Coughlin and second-year law students Helen O'Beirne, Rebecca Cohn and Ariel Linet, who researched the issue as part of their coursework for the Law and Public Service class they took in spring 2011.

A Servicewoman's View

U.S. Army Col. Stephanie Stephens, now a JAG officer who received her J.D. from the University of Virginia in 1993, argued later in her LL.M. thesis that the women in combat exclusion violated the Constitution's equal protection clause.

Have you ever faced obstacles in your career because you could not serve in combat duty? Or known women who have (and how)?

I have not personally faced obstacles because I could not serve in combat. When I first joined the Army there were a number of developmental jobs that women couldn't serve in because of the probability that someone in the position would face combat. The limited ability to serve in some of those jobs affected competitiveness for other jobs in the future. However, my branch at that time (Military Police) did not have that issue.

Do you think the lines have blurred with recent conflicts in the Middle East increasingly asking women to serve in positions in which they might come under fire?

Women have always served in roles that exposed them to fire. Even as early as the Revolutionary War, women were camp followers who cooked and washed for the men in combat. There are many stories of women who hid their gender so they could serve in other conflicts. In Vietnam, women couldn't serve in "combat roles," but some were public affairs officers and nurses who were routinely near the front lines. Part of the fallacy that I believe has opened up more positions over the years is that only those people who actually pull triggers for a living are in combat. The bottom line is that if your job is within the range of enemy weapons, you are in a combat zone, even if your primary job is something other than engaging in direct combat.

What obstacles might the idea to end the rule against women explicitly serving in combat roles face?

I don't believe there are many obstacles anymore. Years ago, public opinion couldn't support the thought of women dying in war. In fact, when I was defending my thesis arguing that combat exclusion violated the Constitution's equal protection clause, an active-duty major angrily yelled out "Are you advocating sending our mothers, daughters, sisters and wives home in body bags?" My answer was that I don't advocate for anyone coming home in body bags — that includes our fathers, sons, brothers and husbands. But those of us who volunteer to serve know the risks, and accept them. Other arguments revolve around strength, stamina and unit cohesion.

Is there any sense within the military that this rule may change soon?

The policy has been slowly eroded over the years. I believe that will continue. Right now, only about 10 percent of jobs in the Army and Marine Corps are closed to women. Barriers to women in certain types of jobs are constantly being overcome. Twenty-five years ago, when I joined the Army, I'll bet you wouldn't have found many women as partners in major law firms or in leadership positions in major corporations. America's attitudes change over time and the military is part of that change. In January 2011, the Military Leadership Diversity Commission recommended lifting the ban. I personally believe that will happen.

Since you started your military career, have your views changed on the idea of women in combat? Have you seen attitudes towards women in general change?

My attitudes have not changed. I have always felt that I could do any job and that I should be afforded the same opportunities as my male counterparts. I went to West Point as a member of the seventh class to have women. I joined the Army as a Military Police officer before attending law school and switching to the JAG Corps. I have faced some negative attitudes and I have also faced gender discrimination in the military.

However, I doubt it is any worse than that faced by women in other predominantly male careers. I have seen attitudes change over the years and they continue to do so. As a general rule, I believe that any women who is technically and tactically proficient, confident and physically fit can be a success in today's Army.

"We studied this issue as an opportunity to further a cause," said O'Beirne.

Although none of the students have served in the military, they have sought out the opinions of many who have, and are interested in hearing from the public as they expand their efforts in the coming months. They also recently signed up a former U.S. Air Force major and F-16 fighter pilot, Tally Parham '96, as counsel for the effort. Parham, an attorney with the law firm Wyche in Columbia, S.C., has been a member of the South Carolina Air National Guard since 1996.

"I am honored to become a part of what I believe to be a very important effort to bring about long-overdue change," Parham said. "I have no doubt about the caliber of the students working on this project, and it makes it that much more exciting."

The group has named themselves the Molly Pitcher Project, after the myth — based on real accounts — of a woman in the Revolutionary War who took her husband's place in firing a cannon on British forces.

"Women have been involved in combat before this country officially came into existence," Mallinak said. "We're just trying to take the hidden contributions of women and expose them to the light of day."

"We've come across a lot of women — who would like to rise beyond a certain level in the military and are de facto prevented from doing so, solely because of their gender," Linet added.

The group believes it will not be difficult to find plaintiffs for a lawsuit, but they would also be satisfied if the Department of Defense institutes a policy change first. In January, a Pentagon commission on diversity recommended that the U.S. military end its ban on women in combat roles. In September, the Australian military announced that it would allow women to fight.

"When the Pentagon made a deliberate decision to put women in combat situations while maintaining this fiction that they are not in combat jobs, they crossed the Rubicon," Mallinak said. "There is no going back now. The only question is how long it takes for the Pentagon and the rest of America to realize that there is, in fact, no going back."

Some within the military have already acknowledged the blurring lines. According to one CNN report, Adm. Mike Mullen, chairman of the Joint Chiefs of Staff, described women's changing wartime role in a speech in November, saying: "I know what the law says, and I know what it requires. But I'd be hard pressed to say that any woman who serves in Afghanistan today, or who served in Iraq over the last few years, did so without facing the [same] risks [as] their male counterparts."

"In a war where there is no longer a clear delineation between the front lines ... and the sidelines ... where the war can grab you anywhere, this will be the first generation of veterans where large segments of women returning will have been exposed to some form of combat," Mullen said.

Parham herself has flown more than 100 combat hours in the F-16 over the course of three overseas deployments, including Operation Iraqi Freedom, during which she entered hostile airspace within the first 15 minutes of the war. Her squadron's mission was to suppress and destroy enemy air defenses. "Women fighter pilots have been getting shot at for over a decade," Parham said. "A surface-to-air missile doesn't discriminate based on gender."

Parham entered service with the South Carolina Air National Guard in 1993, "almost immediately after learning of the repeal of the combat exclusion for military pilots," she said. She was able to defer training until after graduating from law school and was active duty for four years.

Women are also excluded from the Selective Service System, which means that, unlike men, they don't have to register to be available in the event of a draft.

"These two forms of sex discrimination in the military are deeply connected," Coughlin said. "Just as women should be entitled to participate in combat on the same basis as men, so they should be required to shoulder the burden of being drafted in the case of a national emergency. The draft shouldn't be a burden that's carried by men alone. It should be a burden that's shared with women."

But unlike the recent public drive to end the controversial "don't ask, don't tell" military policy, "There hasn't been a big push from non-military women" to expand the draft to include women, Linet said.

In 1981 the U.S. Supreme Court upheld a males-only draft system in Rostker v. Goldberg, based on the Department of Defense policy excluding women from combat.

"At the time they were dealing with a different type of warfare than we're dealing with today," Mallinak said. "In prior eras there's been a clearly defined frontline and then support services that really weren't in harm's way — that's where women were. Today, virtually anyone in a combat zone may find themselves actually involved in combat at some point."

Some military women serving in Afghanistan are part of FETs, or Female Engagement Teams, and work under low-level combat commanders to talk with local women in the countryside.

Coughlin said that not only are women serving, but the military is encouraging them to play a role in certain capacities that, but for the formal policy, would be recognized as combat.

"Female soldiers are needed to help gather intelligence in combat zones from Afghan women and men," she said. "They're put into these very dangerous theaters precisely because they're women, but then told that, because they are women, they can't receive the same recognition, honors, awards, promotions and opportunities as men."

After Coughlin and Mallinak published their op-ed, female veterans and organizations devoted to women's issues contacted the group. And the Pitcher Project has reached out to key stakeholders as well.

Coughlin and student Rebecca Cohn recently attended a hearing before the Congressional Caucus on Women in the Military concerning the combat exclusion. The hearing included a presentation by representatives of the advocacy organization Service Women's Action Network, whose members have cheered the students' work.

"It was really encouraging both to Professor Coughlin and me to see how many representatives had sent their staff to sit in on the meeting," Cohn said.

The Pitchers will next work to lay the groundwork for litigation, which means finding a plaintiff or multiple plaintiffs, as well as counsel willing to help their volunteer effort pro bono. They are consulting with lawyers who work for small civil rights firms, as well as with lawyers from large private firms that devote significant hours to pro bono practice.

Opposition to the combat exclusion has brewed for decades on different fronts. In the late 1980s, a Department of Defense review of the policy led to women being allowed to fly bomber and fighter planes. Attorney Harvey Schwartz, who visited the Law School this month to talk to students in the Program in Law and Public Service and to meet with the Pitchers, is challenging the Selective Service Act on behalf of men who were fired from federal service for failing to register. Schwartz will argue the case, Elgin v. United States Department of the Treasury, before the U.S. Supreme Court in February.

Coughlin said that the group hoped to bring one lawsuit with multiple plaintiffs, in order to educate the courts about the different ways in which the combat exclusion injures women and men in the military. The Pitchers said they would look forward to hearing and refuting the government's objections to allowing women to serve in combat roles.

"There's a whole range of explanations for why women must be excluded, everything from the idea that they don't have sufficient physical strength, to the notion that they will disrupt the psychological bonding in the unit, to the notion that men and women can't serve closely together because they need privacy from each other, to the assertion that the men and women will form romantic and sexual attachments that will prevent them from engaging the enemy effectively, to the claim that men will try to protect fallen female comrades rather than continuing to fight, to the idea that the prospect of losing women's lives will undermine the public support for the war," Coughlin said.

"Each of these claims rests on stereotypes that are injurious to women because they fence us out of the very places where power is exercised," Coughlin said. "This is a classic case of special protections for women serving to confine them to subordinate roles. Our alleged pedestal is a cage."

The result, the Pitchers say, is that women are usually not among the key military leaders at the table when making a decision to go to war.

"We don't know whether or not women would bring different perspectives to bear on when it's wise to wage a war, but we certainly want their perspectives, whatever they are, to be part of the dialogue and debate," Coughlin said. "In philosophy, courage has been defined as the willingness to risk one's life in battle. That form of courage is said to be the most basic human virtue and attribute, and it's denied to women simply because they are women. The message is not, 'We don't need you because you're not fit'; it's not 'We don't need you because you're not strong'; it's that 'We don't need you because you're a woman.' That's very disrespectful, and, more to the point, it's a denial of women's constitutional right to full and equal citizenship."