“Real change, enduring change, happens one step at a time.” — Ruth Bader Ginsberg
RBG urged lawyers to make change on a case-by-case basis. With a potential World War Three looming as Russia pushes forth into Ukraine, the case confronting lawmakers is the Military Selective Service Act (MSSA), colloquially known as the draft. To uphold the legacy of the women’s rights advocates like RBG who aspire to make women equal under the law, the draft should require women to register. Women must be rewarded with the same rights, while bearing the same responsibilities as men.
The MSSA has a history rooted in gendered stereotypes. The current law requires men ages 18 to 26 to register for the draft.[i] The American Civil Liberties Union calls the male-only draft, “one of the last examples of overt sex discrimination written into our federal law”.[ii] Though the draft may never be invoked again, modernization of the law would be momentous change toward removing gendered stereotypes embedded in law.[iii]
Opposition lingers from centuries of “benevolent” sexism, which Forbes journalist Kim Elsesser defines as a paternalistic notion that women need men’s protection. This type of sexism is framed as giving women advantages, making it favorable for women to ignore the inequality embedded in the status quo. If these stereotypes of fragile woman remain in national discourse and legislation, women will never achieve gender equality.[iv]
There are two separate courses of action that can be taken through the legislative or judicial branch. Congress should act to amend the MSSA in two ways: 1) remove the gendered language, and 2) base the draft on ability, not gender. The courts can reverse the interpretation of the 1981 Rostker v. Goldberg decision by retrying the case, or by trying a contemporary case.
Under the Obama Administration, the Department of Defense (DOD) took momentous steps to lift gender-based military restrictions. In 2013, the Defense Secretary eliminated the military’s direct combat exclusion rule for women, and in 2015 the DOD abandoned all gender-exclusion rules for military positions.[v] Though Donald Trump expressed opposition to the DOD’s expansion of military combat to women, claiming that admitting women into combat roles was a ridiculous, “politically correct” move, his administration ultimately did not reverse the ruling.[vi]
Though the DOD has opened the door to women, Congress cannot come to a consensus about whether women should be required to register for the draft. The House of Representatives passed the 2022 National Defense Authorization Act, which included a provision to draft women, though Senate opponents like Tom Cotton (R-Ark) insist women need protection from being drafted against their will. Other senators cite biological studies to argue that women cannot meet the physical requirements of the military, and therefore they will compromise the effectiveness of the armed services.[vii]
I would like to ask the senate opposition, “What about the weak or disabled men required to register for the draft? What about the women who are stronger than men?”. Biology gives more strength to men on average, but men who are too weak for combat are drafted, making strength irrelevant and gender stereotypes the prominent factor for draft registration. As Mr. Carter, the Defense Secretary under the Obama Administration states, “some women could meet the most demanding physical requirements, just as some men could not”.[viii]
These sentiments regarding the MSSA reached the Supreme Court in the Rostker v. Goldberg Case, and the judges ruled 6-to-3 that the MSSA does not violate the Due Process Clause. The majority argued that the DOD’s preexisting gender distinctions exempting women from combat made women not “similarly suited” for draft registration, and therefore only men are bound to register for the draft; according to this logic, the MSSA’s gender divisions are not arbitrarily depriving men of “life, liberty, or property”, because the law’s differentiation between genders was duly processed according to the DOD’s gender combat law.[ix] However, now that combat restrictions have been lifted, the case decided on outdated combat exclusion should be retried. Following four decades of progress towards making women equal under the law, there is a strong possibility the court would reverse this ruling.
We need to send the message that overt gender-discriminatory laws have no place in the United States. It is time to require women to register for the draft because they, too, are valuable, strong citizens and defenders of our nation. I think RBG would praise Congress and celebrate the step towards eliminating laws which discriminate based on sex, one case at a time.
Phoebe Brinker (PPS ‘24) is a Public Policy Undergraduate at Duke University’s Sanford School of Public Policy. This piece was submitted as an op-ed in the Spring ’22 PUBPOL 301 course. This content does not represent the official or unofficial views of the Sanford School, Polis, Duke University, or any entity or individual other than the author.
[ii] Elsesser, Kim. “Senate Discusses Women Registering for the Draft, Benevolent Sexism Abounds.” Forbes, Forbes Magazine, 18 Nov. 2021, https://www.forbes.com/sites/kimelsesser/2021/11/18/senate-discusses-women-registering-for-the-draft-benevolent-sexism-abounds/?sh=5cf0f53253af.
[iii] Satter, Mark. “Congress Moves toward Requiring Women to Register for the Draft.” Roll Call, 5 Oct. 2021, https://rollcall.com/2021/10/05/congress-moves-toward-requiring-women-to-register-for-the-draft/.
[iv] Elsesser, Kim. “Senate Discusses Women Registering for the Draft, Benevolent Sexism Abounds.” Forbes, Forbes Magazine, 18 Nov. 2021, https://www.forbes.com/sites/kimelsesser/2021/11/18/senate-discusses-women-registering-for-the-draft-benevolent-sexism-abounds/?sh=5cf0f53253af.
[vi] Rogin, Josh. “Flournoy to Trump: Let Women Serve in Combat Roles.” The Washington Post, WP Company, 28 Oct. 2021, https://www.washingtonpost.com/news/josh-rogin/wp/2016/11/14/flournoy-to-trump-let-women-serve-in-combat-roles/.
[vii] Rosenberg, Matthew, and Dave Philipps. “All Combat Roles Now Open to Women, Defense Secretary Says.” The New York Times, The New York Times, 3 Dec. 2015, https://www.nytimes.com/2015/12/04/us/politics/combat-military-women-ash-carter.html.