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A Federal Judge Says It's Unconstitutional to Only Draft Men. Could the U.S. Start Drafting Women Into the Military?

Though the judge's ruling does not make a call to action, a federal commission is currently reviewing the possibility of expanding the Selective Service registration requirement to women.
Soldiers, officers and civilian employees attend the commencement ceremony for the U.S. Army's annual observance of Sexual Assault Awareness and Prevention Month in the Pentagon Center Courtyard on March 31st, 2015, in Arlington, Virginia.

Women have been eligible to serve in military combat since 2015.

A federal judge in Texas has issued a declaratory ruling making it unconstitutional to draft only men for military service.

Since 1940, all male citizens and residents of the United States have been required to register for Selective Service when they turn 18, even though the induction of draft registrants ended in 1973. From the time the draft was instated, women were ineligible to serve in combat, until 2015, when the Pentagon decided to allow qualified women to serve in any military role.

"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 Gray H. 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."

The issue was brought forward by the National Coalition for Men (NCFM), a men's rights organization, on the grounds of gender-based discrimination under the Fourteenth Amendment's equal protection clause.

"After decades of sex discrimination against men in the Selective Service, the courts have finally found it unconstitutional to force only men to register," NCFM attorney Marc Angelucci said in a press release. "Even without a draft, men still face prison, fines, and denial of federal loans for not registering or for not updating the government of their whereabouts. Since women will be required to register with the Selective Service, they should face the same repercussions as men for any noncompliance."

Since Miller's ruling is declaratory, it makes no specific call to action on the part of the government. However, Congress created the National Commission on Military, National, and Public Service in 2017 during debates over the inclusion of women in the Selective Service registration requirement. The commission has undertaken a project with two primary tasks: to review the Selective Service registration process and to "examine and recommend ways to increase participation in military, national and public service."

The commission recently published an interim report to share what it has learned during its first two years of research as well as potential ways to increase military participation. Among other possibilities, the commission noted that it is considering an option to expand the Selective Service registration requirement to women.

The commission is also considering the implementation of a universal service system that could require every American to serve in the military. Pacific Standard's Kate Wheeling explored what a universal service system could look like in her 2016 article "Should Women Register for the Draft?" She pointed to the universal service requirement in the Israeli Defense Forces as an example:

According to a report from the United Kingdom's Ministry of Defence, research on the IDF shows that "during service Commanders have recognised that female combatants often exhibit superior skills in areas such as discipline and motivation, maintaining alertness, shooting abilities, managing tasks in an organized manner, and displaying knowledge and professionalism in the use of weapons." The same report found that the successful integration of women in traditionally male-dominated combat roles was largely dependent on military leaders. "If the Commander was to express belief in [women's] ability and considered them to be equal to their male counterparts, then they would eventually become ‘one of the gang,'" the authors wrote.

Gender-neutral compulsory service in Israel may indirectly influence soldiers' experience with post-traumatic stress. The IDF boasts notoriously low rates of post-traumatic stress disorder after combat—as low as 1.5 percent by some counts. Of course, given the military culture's tendency to dissuade soldiers from seeking help, prevalence rates of psychological trauma after warfare are likely to be underestimated. Still, those estimates fall well below the 10 to 20 percent of United States veterans diagnosed with the disorder.

It's this universality of military service that would benefit Israeli soldiers, according to Arieh Shalev, a psychiatry professor at New York University's School of Medicine. "The fact that males and females are drafted in Israel, it really influences what the attitude is about being at war and serving in the military," he says. "It's making the military service everyone's experience."

The National Commission on Military, National, and Public Service will continue to conduct research, hold public hearings, and seek comments on the U.S. military service system until its final report is due to Congress in March of 2020. A public hearing will be held on April 24th and 25th, 2019, in Washington, D.C., on the subject of Selective Service.