WASHINGTON — Taliban fighters didn’t discriminate when they wounded then-Capt. Mary Jennings of the California Air National Guard. She was the enemy, so they shot at her as well as the men flying beside her.
Now a major, and known as Mary Jennings Hegar, the decorated helicopter pilot and other female service members are opening a new front in the challenge to the military’s long-standing exclusion of women from ground combat positions. In a federal lawsuit filed Tuesday, the women say eliminating the policy is long overdue.
“This policy is outdated, and it does not match the reality of modern war,” American Civil Liberties Union senior staff attorney Ariela Migdal said in a telephone news conference.
The lawsuit filed by the ACLU in U.S. District Court in San Francisco is the second this year challenging the military’s female ground-combat exclusion policy. Last May, a University of Virginia Law School team filed the first suit in federal court in Washington.
The lawsuits take similar approaches, calling the military policy a violation of constitutional guarantees of equal protection and a hindrance to promotion potential. Both also face similar challenges. In particular, courts often are loath to interfere with military practices.
“The ground combat assignment policy is founded on (the Defense Department’s) assessment, based on its military expertise, of what is necessary to preserve force readiness and military effectiveness,” Justice Department attorneys wrote in response to the Washington lawsuit, adding that “this assessment is entitled to substantial deference.”
The military’s policy regarding women in combat has been a work in progress since 1948, when Congress first passed a law making women a permanent – though explicitly limited – part of the U.S. armed services. By 1994, after the first Persian Gulf War, the Pentagon narrowed the female exclusion to cover units below the brigade level whose primary mission is to engage in direct combat on the ground. A brigade is usually composed of 3,000 to 5,000 troops.
Last February, the Pentagon further refined the exclusion to allow women in certain occupations to serve in battalion-level units, which typically have 500 to 600 soldiers. Individual branches also are permitted to exclude women from their special operations forces, such as the Navy SEALs.
“The elimination of gender-restricted assignment policies requires deliberate action,” the Pentagon’s February report to Congress cautioned. “There are serious practical barriers, which require time to resolve.”
In past cases, the Supreme Court has said sex discrimination is permitted only if it’s supported by an “exceedingly persuasive” justification that’s substantially related to “important governmental objectives.”
Combat, though, doesn’t always respect the bureaucratic or legal niceties.
More than 280,000 women have served in the military during the past decade, while the Iraq and Afghanistan wars have been fought. More than 130 have died and more than 800 have been wounded, according to the Congressional Research Service.
Hegar came under fire on July 29, 2009, while co-piloting a HH-60G Pave Hawk search-and-rescue helicopter near Kandahar Airfield in Afghanistan. Assigned to the 129th Rescue Squadron, usually based at Moffett Field in the San Francisco Bay Area, Hegar was awarded the Distinguished Flying Cross with Valor, as well as the Purple Heart, for her actions that day in rescuing three wounded U.S. soldiers.
“My story is not exceptional or uncommon,” Hegar said Tuesday. “The vast majority of men I have served with in combat didn’t care if I was a woman. They cared only about whether I could do the job.”
Even with the ground combat ban in place, Hegar noted that she ended up engaging the enemy from the ground for about 20 minutes after her helicopter crashed. Hegar, now 36, said if the policy were lifted she could apply for a ground combat position, which would help her career. Without that potential, she said, she’s transitioning out of the California Air National Guard into the Reserves.
Another woman joining the case, Staff Sgt. Jennifer Hunt of the Army Reserves, served in Afghanistan and Iraq, where she was wounded in August 2007 by a roadside bomb while on a reconstruction mission. Hunt, now 28, says the ground combat exclusion policy has barred her from the leadership schools and experiences usually needed for promotion into higher ranks.
Various military branches differ in their placement of women. While 99 percent of Air Force positions are open to women, according to the Defense Department, only 66 percent of Army positions and 68 percent of Marine Corps positions are. Women can qualify for 80 percent of Navy positions.
All told, women constitute about 14.5 percent of the 1.4 million active-duty personnel.
“There’s definitely a feeling among servicewomen that the Pentagon’s progress is not enough,” Migdal said.
Last year, Rep. Loretta Sanchez, D-Calif., authored a measure to remove the combat exclusion policy legislatively, but the bill attracted no co-sponsors and didn’t pass.
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