GOVT 2305 Essay 1

Samuel Dillow

Government 2305

Fall 2014

Paving the way for gender-neutral military and draft

In order to bring forth the greatest potential force possible, the military would require a more gender-neutral stance than what is presently held, which should include the addition of women to the military draft. This applies to the Selective Service organization as well as to each individual branch of the military. However, in order to do this, several considerations regarding employment and physical fitness must be taken. Most importantly, the military must revert to testing and screening based on physical aptitude in addition to the current testing regime. The military will need to test women and men at the same level to ensure that they are not exposing an existing unit to a potential physical weakness should the population of that unit change drastically in favor of women. However, just as the change toward racial equality took time and had to occur in phases, the change toward gender equality, especially in regards to our national defense, will take time. To further complicate things, this issue has come up in the past, and attempted solutions have failed. However, I believe that the reason for said failure was that the nation was unprepared, and that given current circumstances we stand a better chance to succeed. Integrating women in the military at the same level as men, if done properly, has the potential to extract from within our borders the greatest military force the world has ever known.

I recall standing in formation in an open field of concrete. Each snowflake burned like the end of a cigarette as they gently nestled on my exposed ears. The military uniform provided little insulation from the bracing wind as snow cascaded serenely and silently on everything in sight. The gritty voice of Sergeant Flores exploded in my ear as spittle slapped my face "Stop shivering! Do you think the Iraqis care how cold you are?" The enemy, as Flores eloquently put it, doesn't care. They kill the easiest target, regardless of how much effort that target is exerting. They don’t care if you are a girl --in fact-- they might not be able to tell that you are a girl. Bullets rip through flesh and shatter bones of men and women alike. Currently, the military is accepting women into their ranks, but only through sacrificing the integrity of our fighting force. While it has been moderately successful up to this point, it is hard to know how well the current structure would hold up to a mass influx of women in an event such as a draft. Though it is unclear if a draft is in our future, Fenner reminds us that when it comes to war, gender is no object:

We generally remember that we sacrificed approximately 50,000 American lives in that [Vietnam] war. Yet there was no public outcry at the number of those victims who were military women, either in Vietnam, or in any of our conflicts. When we are ready to spend lives, men and women alike appear to be suitable sacrifices (Fenner, 26).

In this statement she not only demonstrates the gender neutrality of war, but there is also a faint hint that in a future draft, we might find ourselves sweeping up women along with the men. As it stands, only men are able to register for the draft, and to declare in what capacity they would prefer to serve should their nation call on them. Even though the military draft ended in 1973, the Selective Service lingers around in case it is needed yet again (Willbanks, 300). Selective Service does not exist solely as a form of signing up for the draft, just as not registering does not guarantee that you will be spared. Selective Service uses Department of Motor Vehicles (DMV) records, voter registrations, and income taxes to validate 100% registration, ensuring that the candidates active in society are all accounted for (Seago, 9). So if Selective Service is not about ensuring that a person is available to summon for the draft, then what purpose does it serve? One thing that Selective Service provides is a way for males to have a chance to specify in what manner they would prefer to serve should they be called, or to register as conscientious objectors. Though there is speculation that a draft would occur in modern times, it is reasonable to think that if it did, then women might be included. Providing men the ability to formally express their service preferences, but not affording the same to women, robs women of the equal protection insured by our constitution. Regardless of whether the draft ever gets to the point of including women, equal protection means allowing them the ability to express their preferences just as men do. As mentioned before, several DMV offices share information directly with the Selective Services organization. At the time of her writing, Seago noted that all states with automated driver registration software share information with Selective Services (5). It seems trivial to allow all persons (not only men) to update their military service preferences when updating other records with the DMV, regardless of gender. This would provide equal protection for women regardless of whether or not the draft were to include them. Of course, additional changes may be required before a gender neutral draft would be feasible.

In order for the military draft to be gender neutral, the hiring process must be considered. The military currently does not have a competitive hiring process. When they are filling slots for a position, they allow people to apply, and if they qualify, then they are accepted immediately. In contrast, the civilian world currently uses a pool of workers which all apply during the same time period, and when that period ends, the employer selects the most qualified individuals. The military method lends itself to less discrimination because it is more of a first-come first-serve basis. This means a man and a woman will never compete at the same time. However, due to the fact that some positions are not open to women for application, the military method preempts a woman from displaying her competitive advantage solely based on the fact that she is a woman. Furthermore, the military has different standards for men and women, which means that in a situation of polar extremes (an all-men unit fighting an all-women unit) our nation would be at a disadvantage. Something that John Roemer calls the "nondiscrimination principle" is the notion that a pool is created, and everyone who has the qualifications for the duties of the job are placed in the pool, and finally the most qualified person is selected (Roemer, 111). I would argue that anyone should be able to "try out" for a particular job in the military, allowing women to take the position only if they are physically qualified. This would help to ease the transition into a gender-neutral draft. The current precedent concerning registration for the draft is a legal form of gender discrimination. It is legal because women are not eligible for the positions targeted by such a draft. Changing this policy has been a long time in the making. Suddenly changing the mentality of the entire nation from a gender-biased view of women and the military to a gender-neutral view thereof, is not feasible. As the nation has demonstrated with other forms of discrimination, changes toward neutrality happen slowly over a period of decades.

Treating people differently based solely on their gender is a form of discrimination. However, just as racism (a form of discrimination) has taken years to evolve to its present state, so gender discrimination will take some time to achieve balance. To paint a clear picture of racism from then to now, one need review certain landmark cases. In Dred Scott v. Sandford the Supreme Court upheld the status of persons of African descent as property. Later, the fourteenth amendment to the United States Constitution declared all persons born in the United States as citizens thereof. This set the stage for the Plessy v. Ferguson case, in which the Supreme Court determined that the (then) current "separate but equal" doctrine was constitutional. Later, however, Oliver Brown challenged that "separate educational facilities were inherently unequal", and in Brown v. Board of Education the Supreme Court agreed. This ended the separate but equal doctrine of the time. However, a new trend existed in which minority slots were reserved by institutions to ensure that minority groups were not being ignored. This minority reservation helped in some ways, but in Regents of the University of California v. Bakke the Supreme Court made yet another stride in racial equality by eliminating the use of racial quotas. This "color-blind" world was something that Harlan predicted nearly 75 years before it happened (Lively, 111). However, it would not have been possible to institute the ideology of today in the minds of the people present in the Dred Scott hearing. No, that change had to happen slowly. Just as someone pushing a boulder uphill takes a moment for breath between shoves, people needed time to adjust to each change before moving on to the next.

In the same way that racism improved slowly over time, taking a moment for civilization to adjust to each change, gender discrimination is something that will take time to evolve for the better. Glenn Wong argues in his book Essentials of Sports Law that the current mindset regarding women in sports is the "separate but equal" doctrine of the Plessy times. He makes a stance much like Oliver Brown in that separate has a tendency to be unequal. If there are separate boys and girls teams, which are mutually exclusive, then one must ask if they are also equal. Furthermore, if the two teams are provided with different incentives, transportation, or competitive opportunities, then they are not equal. Moreover, if the teams have different rules regulating the sport in question, then they are not equal. Finally, if the teams play in different seasons, then they are not equal (Wong, 360). In many ways, society reflects the separate but equal philosophy, but in other ways it reflects a quota philosophy much like that of the Bakke era. Quota based discrimination results in a number of women being hired, not based on merit, but rather based on the present number of males employed. Whether we are stuck in the "separate but equal" phase, or the "quota" phase, or some other phase, is unclear. What is clear is that gender discrimination can benefit from the same observations as racial discrimination, which are that "separate but equal is inherently unequal" (Bakke) and that quotas do not guarantee equal protection (and in some cases prevent it). The military has, for the most part, adopted women into the ranks with great equality. However, there seems to be an issue about the manner in which to guarantee women availability in all slots.

The conflict circulating around women in combat roles is an old one. The calling of all available persons to support the Civil War is one of the earliest forms of draft for this nation, and women were called then. In the armies of the Civil War, however, women were restricted to a limited set of roles such as nursing. Even the accredited physician Dr. Mary Walker was not allowed a title such as a surgeon in the military, though she did all the same work and more. While women were allowed to serve at arms length, some of them were still driven to go further. Many women would don their husbands clothes and disguise themselves as men "just to serve". When my Air Force unit was informed of the death of a fellow airman, we rallied around the family, providing support and acknowledging their great contribution. I speculate that a man who gives away everything for his country still gains something -- fame. However, though we have the names of numerous fallen men who gave the ultimate sacrifice, these women who gave all just to serve were buried anonymously (Coughlin, 440). No one called their families to thank them for their service, to help with acquiring jobs after the loss, or to help with relocation. Not because of apathy, but because the women would strip their identification as it was the only way to serve.

Times have changed since the Civil War, and men and women have been given due process concerning the registration and servitude of women in the military. Seven years after the Selective Service organization began allowing males to register and specify preferences concerning their service options, those same men questioned the validity of registering only males. Due process regarding the drafting of women along with men occurred in 1981 in a case known as Rostker v. Goldberg. In this case, men stated that the requirement for registration of males and not females was a form of gender discrimination against males. That is to say that this case was not women fighting for inscription along with men, but rather men stating that the standard was sexist and unfair. In his review of the case, Judge Rehnquist observed that the purpose of the registration system was to register people for military combat, and women were not permitted in combat roles (Rhode, 98). This exclusion is called the Direct Ground Combat Exclusion Rule or the Ground Combat Exclusion policy, and as long as this rule is in place, Congress will not see fit to allow women to register for the draft.

Some of the reasons that women were not allowed in combat roles were obvious, while others are more subtle. To begin with, even if the military were to chose to include women in limited ground combat roles, they would lack the immediate facilities and accommodations for them. Women would require separate latrines and bathing facilities as well as separate sleeping arrangements. However, much less obvious are considerations such as submarines. Once a submarine were retrofitted to accommodate female berthing and bathing arrangements, there would be more subtle consequences. The carbon monoxide levels in a submarine are tolerable for an adult, but could prove fatal to a fetus. If a woman were to become pregnant while on a submarine, she would need evacuated in order to prevent a loss of life. This is a substantially difficult issue as submarine missions are secret, either making the rescue mission also secret, or exposing the information about the submarine mission. Furthermore, evacuating from a submarine is a risky endeavor even under the best conditions (Sherrow, 112). With time it is possible that we will find a way to adapt combat positions for the accommodation of women. However, the majority of women are unable to perform some of the physical duties required of males in forward ground combat positions.

In another court case, Todd Write beat his wife, breaking her ribs and damaging her spleen. She was treated in a hospital, where her spleen ultimately had to be removed (State v. Write 312). In the trial, the court refers to the aforementioned Rostker v. Goldberg case. They state that the discrimination against women in the military is not based on an archaic generalization, but rather a realistic observation as to the physical capabilities of women.

We find that the "difference in gender" aggravator is legitimately based upon realistic physiological size and strength differences of men and women... (State v. Write 315)

This quote portrays the fears that some may have about a woman fighting in military ground combat -- that she might not be as physically capable of defending herself or overcoming her adversary. If women are often the victims of domestic violence, with men breaking their bones and destroying their organs, then the military is just in keeping them from combat. Keeping women from combat is not only to protect the women, but also to ensure the best possible defense of our nation. However, there is still a way to be gender neutral and yet have a strong national defense. If all soldiers were required to compete on a physical level for the position in question, then there would be no doubt that a woman in such a position could physically rise to the challenge at hand in a close contact scenario. Not only would such a change promote the most capable women to the call of duty, but it would also weed out males who are potentially less capable, but occupying a position that a stronger woman could be filling. From 1981 to 1994, women were allowed in the military, but many positions remained closed to them due to the Direct Ground Combat Exclusion Rule. However, this would not be the norm for long, as various branches of the services would gradually open positions to females as they were retrofitted to accommodate the mixed genders. However, even as a significant percentage of the available positions were becoming available to women (even combat positions), the Direct Ground Combat Exclusion Rule still prevented Congress from allowing women to register for the draft. Secretary of Defense Leon E. Panetta envisioned a military where women would be able to serve alongside men, and in 2012, he saw significant progress toward that end. The military modified the Direct Ground Combat Exclusion Rule rule, allowing 14,000 new positions to be opened to women. Panetta was not through, however, and as a result of his continued efforts, Martin Dempsey, Chairman of the Joint Chiefs of Staff of the Department of Defense signed an official memorandum in January 2013, officially rescinding the Direct Ground Combat Exclusion Rule (Kennedy, 280). The memorandum calls all branches to begin preparing a plan for opening positions to female soldiers with a goal of complete adoption by 2016. Now, with the greatest legal barrier to the draft eliminated, we can expect to hear much more about women in the draft as we approach 2016. However, there is still a looming inadequacy in the manner that we train and test our military men and women.

One of my occupations in the military was a fitness test administrator. When I tested men, they were required to perform approximately 60 push-ups and 60 sit-ups, depending on age. Women, however, had only to do approximately 40 of the same. In addition to the terraced evaluation based on gender, people who sat behind a desk all day were held to the same standard as people who loaded equipment or hiked for miles carrying 80 pounds of gear. The reason for testing everyone the same was so that you could take a "paper-pusher" as we called them, and reassign them to a forward combat role if necessary without having to pre-condition them. However, if you fire someone who is not doing physical work for not passing the fitness test, then this presents an issue. You create a situation where a person who is not fit to be a forward deployed soldier is completely removed from the military and unable to do even the most basic tasks in defense of our nation. Still, this does not seem to be a problem until you consider that for every under-qualified person that you remove from the military, you have to shift a strong and capable person from a combat role to a paper-pusher role. If you allowed weaker people to participate in the military, you would save the stronger people for the combat roles. In order to do this, you would need duty-specific fitness testing, where the paper-pushers are still held to a high standard, but the combat persons are held to an even higher fitness standard. Rita Simon echoes a report from the General Accountability Office, or GAO (an investigation branch of Congress), in arguing for testing that does exactly that -- measures a person's ability to do a specific duty (Simon, 179).

Earlier we considered equality of opportunity in a writing by Glenn Wong. He argues that equality of opportunity is reached when "two teams exist but the women compete under different rules than the men" (Wong, 360). This is precisely the scenario in the military fitness testing, and it creates a problem where, when it comes to the actual task at hand, it will fall from the under-trained soldier to someone else. In an account by Brian Mitchell, women in the army trained in storage of ammunition were delegating the task to men because the cases were too heavy. Our friends at the GAO showed up again, and put a stop to it, by requiring that recruiters perform strength testing in order to recruit persons for an applicable job. This solution was met with success as in 1981, the women were moving crates of ammunition once again. However, in a review of the situation, the GAO discovered that the testing was being performed with empty crates, because the full crates were too heavy (Mitchell, 108). The issue here is twofold. In the first place, the time was 1978, and as mentioned before, solutions to discrimination take time. The GAO, much like Harlan, was too early in its adoption of new standards for gender nondiscrimination. In the second place, it is likely that the military was suffering from the "quota" phase of gender equality, and needed to move beyond that for this solution to work. If the same conditions were applied now, they would invariably be met with different results, as the world we live in is much different. If the world is ready for a truly gender neutral military, then the GAO could apply this policy again, and would be satisfied with its next review.

As we draw near the 2016 gender-neutral mandate from the Department of Defense, we will most likely see a resurfacing of the Rostker case. If we are prudent in preparing the various branches of the military for appropriate usage of the strengths of each person, I am confident we will be able to reverse the current ruling and move one lurch forward into the future. Such a change will allow women the right to defend themselves in the event of a draft, and allow men the sense of equal protection. Furthermore, it will generally move the military into a period of more equal opportunity employment, not based on a strict gender bias, but on the merits of the person involved. Finally, the replacement of troops without losing precious insight will occur through natural attrition as current soldiers begin failing fitness tests and being moved into more clerical or advisory roles.