ACLU Sues Department of Defense Over Military’s Discriminatory Combat Exclusion Policy

Major Mary Hegar is by all measures an American hero. A helicopter pilot who has served three tours in Afghanistan, she also spent five years in the Air Force and another six in the Air National Guard where she trained to be a Combat Search and Rescue pilot. She has lifted hundreds of wounded soldiers and civilians from battlefields and brought them to safety.  In a July 2009 rescue mission that earned her the Purple Heart and the Distinguished Flying Cross with a Valor Device – two of the highest possible decorations for an American Air Force pilot – her aircraft was shot down over Afghanistan.  Upon hitting the ground, despite sustaining a bullet wound, she not only fired back at her enemies, but also managed to successfully complete the rescue.  Yet despite all of her heroism, leadership, and experience, Major Hegar is barred from competing for combat jobs simply because she is a woman.  The American Civil Liberties Union, however, is fighting to change that.

On November 27, the ACLU filed suit on behalf of Major Hegar and three other military servicewomen against the Department of Defense for its discriminatory combat exclusion policy, which keeps women like Hegar from taking one of the 238,000 direct ground combat positions in the Armed Forces. So while Hegar is allowed to rescue infantry, she is not allowed to fight alongside them.  According to the ACLU, this policy constitutes a denial of Equal Protection under the Fifth Amendment.

According to the Supreme Court of the United States, the U.S. government is barred from sex discrimination unless the policy is supported by “an exceedingly persuasive” justification that it is “substantially related” to “important governmental objectives.”  And while there are few government objectives as important as our national security, the ACLU argues, there is no justification for the combat exclusion policy, described in the complaint as “one of the last vestiges of federal de jure discrimination against women.”

The lawsuit describes the accomplished careers of the four named plaintiffs, listing their achievements, their awards, and thanks to the combat exclusion policy, their limitations. The policy keeps these women, and the more than 280,000 other women who have served in Iraq and Afghanistan, from applying to certain military schools, receiving the official recognition necessary to advance their careers, and doing the work they have already proven themselves suited for and capable of over and over again.

Pentagon spokesman George Little defended Defense Secretary Leon Panetta’s record on gender equality. “On his watch,” Little said, “some 14,500, give or take a few, positions have been made available to women. And he has directed the services the possibility of opening additional roles for women in the military.”  For the ACLU, though, Panetta’s actions may have been too little too late.

As described in the suit, the Department of Defense has categorically prohibited women from taking combat positions since 1994.  This has translated into a bar against women from pursuing entire career fields in the military, including infantry, armor, and special operations – constituting 20% of the military jobs available.  Perhaps even more problematic, the policy also limits servicewomen’s ability to ascend the ranks of the military because formal assignment to combat units is considered an important factor in promotions – over 80% of the Army’s general officers came from positions which women simply cannot hold.  Yet as the story of Hegar’s valor under fire shows, women are just as capable of men of direct combat engagement with our country’s enemies.

For Hegar, though, the problem isn’t just that her career is stifled or that she is blocked from certain units and assignments. It is also the atmosphere and institution-wide prejudices that the combat exclusion policy engendered. The policy, according to Hegar, “makes it that much harder for people to see someone’s abilities and instead reinforces stereotypes about gender. The policy creates the pervasive way of thinking in military and civilian populations that women can’t serve in combat roles, even in the face of the reality that servicewomen in all branches of the military are already fighting for their country… They shoot, they return fire, they drag wounded comrades to safety, they engage the enemy… They risk their lives for their country.”

Is that enough to allow access to them to all positions in the military? That will now be up to the United States District Court for the Northern District of California to decide.



Deena Shanker is a graduate of Barnard College and the University of Pennsylvania Law School. She enjoys reading, playing with her dog, and eating too much cheese.



This post is originally published on Vitamin W.  It is cross-posted with permission.


Photo credit: Lawrence Whittemore via photopin cc

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