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Lawsuit against military service rules for women moves forward

In 2012, the Service Women's Action Network (SWAN), an advocacy group for female soldiers, filed a lawsuit challenging a 1994 Pentagon policy barring women from serving in combat roles. That policy kept women from serving in 238,000 positions in the military.

That policy has since been replaced by what is called as the "Leaders First" directive. Under the directive, women can only serve in combat units that have at least two women leaders. The policy, SWAN argues, has concentrated women into a few brigades that are derisively referred to as "Amazon units." Moreover, it excludes all National Guard units in 48 states, preventing women from accepting armor or infantry positions. They are also barred from entry-level assignments to combat units, which men are allowed.

SWAN is challenging the Leaders First directive and several other policies. For example, the lawsuit targets the Marine Corps' policy of separating recruits by gender during basic training, saying that doing so stigmatizes women and puts their early careers on a different footing than men's.

"There's no reason why women can't be on equal footing," said a lawyer for SWAN. She added that the purpose of the lawsuit is to break down "artificial barriers based on gender alone."

SWAN also takes issue with recent statements made by Defense Secretary Jim Mattis. For example, he recently said that "the jury is still out" on women in combat. In 2015, he said in a speech that, if women were allowed to serve in the infantry, America's enemies would stop fearing "America's awesome determination to defend herself."

The federal judge hearing the case asked why Mattis's statements were relevant, considering that the polices in question were created by the Obama administration. SWAN's lawyers pointed out that Mattis makes day-to-day decisions about female solders' opportunities on an ongoing basis.

A Justice Department lawyer defending the policies told the judge that the Leaders First directive is expected to naturally phase out by 2020 as more women take on leadership positions. Given the current effect of the policy, however, that seems unlikely. Moreover, the female soldiers were told three years ago that the military would fully integrate combat units by 2016.

So far, the lawsuit has survived the government's motion to dismiss. The federal judge ruled that there were genuine disputes of fact that prevented the case's dismissal. The main factual disputes are about the true rationale underlying the policies preventing women from fully participating in the military and whether that rationale is sufficient to overcome SWAN's argument that the policies are discriminatory.

If you are facing discrimination in the federal workplace, contact an attorney familiar with federal employee law.

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