Carmen Russell-Sluchansky interviews Anne M. Coughlin, a Virginia University law professor:

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Four military servicewomen are filing suit against the Department of Defense calling discriminatory military policy that keeps women out of the roles that are primarily combat oriented. The first in the nation lawsuit was filed by the American Civil Liberties Union in San Francisco yesterday. And I have on the line Anne Coughlin, she is a researcher on the lawsuit, the professor of law at the University of Virginia Law School.

The ACLU lawsuit which was filed yesterday is not the first in the nation to challenge the combat exclusion policy. In fact last May, a lawsuit was filed in the district court for the District of Colombia making the same allegations on behalf of a different group of plaintiffs. And the lawsuit that was filed last May was brought by a Washington DC law firm that worked closely with me and a group of students at UVA Law School to bring the matter to the courts. So the ACLU lawsuit just to make it clear is the second lawsuit. 

So what happened with that first lawsuit? 

The first lawsuit is still pending. We filed a complaint in May 2012 and the government has filed a motion to dismiss the complaint on the grounds that the courts need to give a lot of deference to the military in deciding how to manage national security and the defense of the nation. And they’ve raised a range of arguments. We filed opposition papers and we’re waiting to have an oral argument before the judge. 

Let’s look at the ACLU lawsuit. I wanted to ask you and get a little bit of background. What exactly are they suing for now? I hear about women who were killed in Afghanistan, who were killed in Iraq. We know that women actually go into combat when they serve in the military but, are those not combat exclusive roles, is that issue? 

Yes, you’ve put your finger right on the point. The policy that is being challenged in the lawsuit this – each branch of the military has different approaches to this question but both the Army and the Marines in particular have policies that state that women may not be assigned to ground combat units or roles. So there is a policy that officially bars women merely because they are women from being assigned to these roles. It doesn’t matter whether women are strong or fit, if they have good shots or psychologically durable and so forth. The idea is just because they are women they can’t participate. As it turns out, as you’ve just pointed that out, in the recent theaters of war in Iraq and Afghanistan women in fact have been in serving in combat roles or the functional equivalent of combat roles but they are not formally assigned there, instead, what the military has been doing, is “attaching” these women, but in effect placing them in combat in the same kind of harm’s way. So what the lawsuit aims to do, on one level, is to require the military to start being honest about the way in which it is using women in combat, formally assigning them, letting them be assigned there, and giving them the recognition and the credit in doing those jobs. 

So right now women are functionally the equivalent, they actually going in and doing a lot of the same thing that men are doing, but they are not giving the accommodations for actually serving in that roles. 

Correct. And to be completely clear there may be additional women who, and in fact we know this from having studied the lawsuit, there are additional women, women in addition to the ones who’ve been attached to serve in the functional equivalent of combat roles. There are women who want to step up and volunteer for these positions but they are told that they can’t. And what has happened in Iraq and Afghanistan is that from time to time the military has discovered it needs women in these positions. Or because of the way in which contemporary wars are fought there is no clear demarcation between a front line and the rear space that is safe. It turns out that everyone who is in the theatre is in combat, functionally. And so women are in combat whether or not we want to assign them there. So the policy is still, again, it’s doing some important work in the sense that women who want to step up and volunteer, are kept out. And at the same time the military has been deliberately circumventing it by, as I said, “attaching” these women not formally assigning them. And since they’re not formally assigned they don’t get the credit that they should be getting in their professional careers. 

Looking over the complaint I understand that in a large aspect of this is a fact that if you are not actually put in explicit positions, like you are not able to volunteer for certain combat duties or for certain types of positions, it actually limits your career options for going forward. 

That is exactly right. So there is obviously a range of professional positions in the military, the profession of combat arms is one of the most significant, perhaps the most significant, it is the core of what we expect the military to do. To go to combat when it is necessary and women are excluded from that core space. Therefore the tracks that are available to them are limited and in fact in order to advance through the military hierarchy and to come into very senior positions and ranks. The solder has to have served in combat arms. And of course women can’t, so their ability to advance is quite restricted. 

I do understand that the military even before this lawsuit was filed, and perhaps this was more a reaction to the earlier lawsuit that you’ve mentioned, you know they are looking into possibly expanding roles for women in combat. Are they simply not moving fast enough, or do you think that they are not taking the issue that seriously? What prompted the lawsuit at this point to push them a little bit further? 

The military has been studying the combat exclusion policy for many years, for decades, in fact. And women in the military and women lawyers and policy makers who are interested in supporting their equality, have been waiting patiently on the sidelines for the military to decide what to do. And you’re quite right, it is clear that the military is studying the question very intensely these days in part because of the valorous work service that women have been doing in Iraq and Afghanistan. So it is absolutely very much part of the agenda. But each time the military says we are studying this, we’re going to make a change, nothing changes. It may be that this time the military will make the change without the assistance of litigation to place pressure on them. But we’ve just decided that we could no longer stand by and wait, and we thought we would bring the issue to the court and ask for a judge to rule on it. 

According to the lawsuit, 238,000 positions in the military are basically barred for women, women cannot fill those roles. It seems like a lot of jobs. At the same time you’ve mentioned that the military had basically said that women didn’t have certain capabilities when it came to combat. It’s 2012, the situation seems to be very sexist.  

Oh, yes. That is our position entirely. And our position is that this form of sexism is illegal under the United States Constitution. The government is forbidden to use sex as a proxy for what an individual person can do. The government can’t discriminate based on sex. And here we see the federal government doing exactly that, telling women that they may not take on certain jobs merely because they are women. It is not an argument that the individual women is not strong enough or brave enough or, you know, a good enough shot, whatever the capacities are, you are just a female you can’t do these jobs. And notice by the way, it i discrimination against men too. Because men of course are forced to take up all these roles. Some of them may not want to go in combat arms. They might want some other job. But they are going to be required to go to combat arms if there is a need for it. So certainly by 2012 this appears to be very glaring and egregious example of this kind of sex discrimination, that we are working to get rid of for the past, at least 50 years or maybe a century. But it is still with us. And for that reason we thought it was necessary to go into court and to invite a legal judgment as opposed to just continuing to make these arguments in the policy arena. 

Actually it is funny you bring up the way of discrimination against men who are actually forced to serve. Because one of my questions is if I were in the military if I have ever been in the military I could imagine I would probably tried to avoid a lot of combat. And yet here we have women who volunteering saying ‘hey, let me do that, I want to go in and fight’. So can you tell me about the four women who are part of the lawsuit, I mean, are they patriotic? Or do they want to formulate a military career? What is it about them that make them feel that they want to go in and shoot people, I guess? 

Each individual soldier is going to have different preferences and different ideas about where they want to serve. But service in combat is, as I mentioned, the core of citizenship, the obligation, and perhaps the opportunity to serve your nation at a time of this very grave peril. And these are people who don’t want just go and shoot in order to shoot. But they want participating in that most meaningful part of the job, the most central part of this institutional mission they’re serving. So the individual women and likely individual men want to go to a combat arm, you know, they have a range of reasons of wanting to do that. They have certain skills, certain talents. And what I told is, again, if you are a young person and you are very patriotic and your mission is to serve the nation in this way and this is where you want to be, and you are told you can’t do it just because you are a female is deeply disrespectful, humiliating, sexist and unconstitutional. 

And on that last point, exactly, I want to go back to something you’ve said before that the US government cannot discriminate on the basics of gender. If it really serves to some kind of compelling government interest, if there is, you know, a really strong enough interest for them, for something that might violate the constitution, they can discriminate. But I do want to know what you think their reaction to this lawsuit might be. I mean what do you expect from them, may they come up with some kind of reason why women shouldn’t be able to serve or do you think they capitulate before. I know you cannot get into a mind of a military, but.. 

Thanks so much for the clarification. You’ve asked the most important question. And I am going to clarify the most significant nuance. So the government is forbidden to discriminate on the basis of gender, absent and exceedingly persuasive justification for doing so. So the government will be required in defending the two law suits to come up, you know, to come forward and to offer a what the Supreme Court calls an exceedingly persuasive justification for this flat out ban on women in combat. And as we expect there would be a range of reasons that will be offered by the government. These are reasons and arguments that have been in circulation for at least the past 50 years or probably even longer. There will be arguments about women’s physical strength or the lack of physical strength, there will be arguments about the need for the two sexes to have privacy, women and men can’t share living quarters, bathroom facilities, they need privacies, there are arguments about how women and men are going distract each other if they are in these combat roles together, there might be some sexual tensions that will create distraction. And there are also arguments that male and female comrades can’t form that kind of profound psychological bound which is necessary to create an effective fighting unit. That you know there is a real need for, you know, a very intense psychological bounding. And again there is something about difference between the sexes that can prevent from these psychological bounding. So we expect that some range of these kind of arguments to be made by the government. And then the court will have to decide whether those amount to what is known as an exceedingly persuasive justification. Just to continue our position is that none of those arguments should hold water, they rest on stereotypes about the differences between men and women, they are not based on empirical realities at all. In fact there are women who can satisfy the physical fitness standards, we’ve seen that in Iraq and Afghanistan, and the arguments about the privacy and men and women and their inability to bond with each other - these are just stereotypes that have no basis in reality. 

That is Anne Coughlin, law professor at the University in Virginia. And she was a researcher whose research led to ACLU lawsuit against a ban on women in combat positions. Thank you so much!