ACLU Files New Legal Challenge Against Defense Department for Failing to Integrate Women Into Combat Positions

SAN FRANCISCO — The American Civil Liberties Union Women’s Rights Project, the ACLU of Northern California, and the law firm of Munger, Tolles & Olson LLP filed an amended complaint today in a lawsuit against the Department of Defense seeking equal access for female soldiers to ground combat positions.

The amended complaint, filed on behalf of the Service Women’s Action Network (SWAN), challenges the “Leaders First” policy of the Army and Marines Corps that requires enlisted women to wait to enter combat battalions until two or more “women leaders” are assigned to those units. It also asserts that the Marine Corps’ policy of segregating male and female recruits for basic training unconstitutionally impedes women’s integration into combat roles.

“The Department of Defense appeared to be moving in the right direction when it cleared the way two years ago for women to start fully participating in combat units,” said Gillian Thomas, senior staff attorney with the ACLU Women’s Rights Project. “But the Army and Marine Corps then adopted policies that brand female soldiers as unequal, and put responsibility for integrating women into formerly male-only units solely on other women.”

More than five years ago, in November 2012, SWAN and four individual servicewomen filed a lawsuit challenging the DOD’s ban on women in combat positions with the help of the ACLU, the ACLU of Northern California, and Munger, Tolles & Olson LLP. In January 2013, shortly before the DOD was scheduled to answer the complaint, the DOD officially rescinded a 1994 directive that barred women from being assigned to most ground combat units, totaling roughly 240,000 positions.

In December 2015, DOD announced that all military jobs, units, and schools would officially be open to women “without exception” — yet the Marine Corps maintained its policy of sex-segregated boot camp, and both the Army and the Marines imposed the “Leaders First” policy, both of which treat women joining combat units differently than men solely on the basis of gender.

The amended complaint, filed today with the U.S. District Court for the Northern District of California, alleges that the current policies and practices of denying women opportunities to serve in combat battalions in the absence of existing “women leaders” and requiring women Marines to attend sex-segregated boot camp are unconstitutional.

“The DOD claims that ‘Leaders First’ helps women, but in fact the policy is preventing women from entering combat arms and hindering the progress of integration,” said Lydia Watts, CEO of the Service Women’s Action Network. “That policy, along with training female recruits separately from men at Marine boot camp, is the same old sex segregation by a different name.”

The complaint outlines specific ways in which the “Leaders First” policy unconstitutionally harms women’s opportunities, including that it:

• Deprives junior enlisted servicewomen access to the full range of combat positions available to their male colleagues, because they are assigned to only those brigades in which women “leaders” are installed;
• Deprives women “leaders” access to the full range of combat positions because they are assigned based on the needs of the “Leaders First” policy;
• Communicates to male servicemembers and leaders in combat units that they have little or no responsibility for the development and advancement of servicewomen;
• Places unusual and unnecessary burdens on junior enlisted women, who are often required to ignore chain of command norms in order to seek counsel from their designated female “leaders”;
• Places unusual and unnecessary burdens on women “leaders,” who are required to divert attention from their own professional development in their new roles in combat units to mentor and supervise junior enlisted women; and
• Causes resentment among male soldiers in combat units.

The complaint further contends that the Marines’ policy of training male and female recruits separately at boot camp is unconstitutional, as well, because it:

• Is premised on stereotypes about women’s aptitude for military service;
• Deprives women of equal opportunity for training and mentorship, thus impairing their ability to successfully meet gender-neutral physical standards for their contracted combat MOSs and thereby to continue their training in those specialties; and
• Instructs male recruits and leaders to regard female servicemembers as in need of protection, incapable of competing on equal footing with men, and otherwise as second-class members of the Marine Corps.

For much of U.S. history, women’s participation in the Armed Forces has been severely limited by law. Over time, Congress has removed statutory restrictions on women’s participation in the Armed Forces, and since the early 1990s there has been no prohibition on women serving in the military — including combat positions. Women now make up an increasingly significant percentage of the Armed Forces, with more than 280,000 having served in Iraq and Afghanistan alone.

“Claiming to advance women by treating them differently from male servicemembers is just wrongheaded,” said Christine P. Sun, Legal Director of the ACLU of Northern California. “True integration demands that senior male officers mentor and train junior enlisted women as vigorously as they do their male subordinates.”

The full amended complaint can be found here:
https://www.aclu.org/legal-document/swan-v-mattis-second-amended-complaint

More information on this case, including biographies of the plaintiffs affiliated with the original complaint, can be found at www.aclu.org/womens-rights/hegar-et-al-v-panetta