Only Drafting Men in War Is Gender ‘Discrimination,’ Federal Judge Rules

“They’re hollering they don’t have equal ‘rights.'”

A federal judge in Texas ruled Friday than an all-male military draft is unconstitutional given that women can now serve in combat roles just as men do.

Judge Gray H. Miller of Federal District Court in the Southern District of Texas noted that the Supreme Court’s 1981 ruling in favor of excluding women from the draft was based on the fact that women could not be combat soldiers. But the Pentagon opened up all military roles to women in 2015.

“While historical restrictions on women in the military may have justified past discrimination, men and women are now ‘similarly situated for purposes of a draft or registration for a draft,’” Judge Miller wrote in his ruling. “If there ever was a time to discuss ‘the place of women in the Armed Services,’ that time has passed.”

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Miller said Congress has never fully examined whether men are physically better able to serve than women. In fact, he noted in a footnote, “the average woman could conceivably be better suited physically for some of today’s combat positions than the average man, depending on which skills the position required. Combat roles no longer uniformly require sheer size or muscle.”

Miller’s ruling was declaratory, and it did not specify any action that the government must take to comply. It comes as an 11-member advisory panel, the National Commission on Military, National, and Public Service, is studying the draft system, considering whether it should continue and whether women should be included.

The case was brought by a men’s right group, and two men who argued an all-male draft violates the 14th Amendment’s equal-protection clause. Although there has not be a US military draft in 40 years, men who fail to register with the Selective Service System at their 18th birthday can be denied public benefits such as federal employment and student loans. Women cannot register for Selective Service.

The group, called the National Coalition For Men, cheered the ruling.

“We think it’s about time since women are allowed in combat,” Marc E. Angelucci, a lawyer for the National Coalition for Men, said. “If we have draft registration, both sexes should have to register. There’s really no more excuse to require only men to register.”

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Many conservatives called the decision a logical result of the feminist campaign for equal rights, which in the #MeToo era has focused on combatting workplace inequality.

However, some worried that the judge had set a dangerous precedent.

Liberal Harvard University constitutional law scholar Laurence Tribe argued that the ruling was correct.

Meanwhile, feminists were largely silent. The Pentagon, too, declined to comment.

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Cover image: An illustrative image of a female soldier. (Wikimedia Commons)

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