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Military Women Challenge Combat Exclusion Rule In Lawsuit Against Defense Department

11/27/2012 01:22 pm ET | Updated Nov 27, 2012

A first lieutenant in the U.S. Marine Corps, a captain in the Marine Corps Reserves, a staff sergeant in the U.S. Army Reserves and a major in the U.S. Air National Guard filed suit Tuesday against the Department of Defense, challenging its rules restricting women in combat under the Fifth Amendment.

The American Civil Liberties Union is representing Marine 1st Lt. Colleen Farrell, Marine Reserves Capt. Zoe Bedell, Army Staff Sgt. Jennifer Hunt and Air Guard Major Mary Jennings Hegar in the suit, filed Tuesday afternoon in the U.S. District Court in San Francisco. The four individual plaintiffs have all served in Afghanistan or Iraq, and two are Purple Heart recipients.

"It's not about gender," Hegar said on a press call Tuesday. "It's about skill sets that have a lot less to do with how much you can lift or what chromosome you carry."

Joined by the advocacy group Service Women's Action Network (SWAN), the four servicewomen accuse the Defense Department of violating their rights to equal protection under the law by maintaining policies collectively known as the combat exclusion rule. Though the Pentagon is reforming the policies directed at servicewomen, the rules still bar women in the U.S. military from specific combat positions -- positions that are available to men.

"Combat exclusion is an archaic policy which does not reflect the realities of modern warfare, the values which our military espouses or the actual capabilities of our service women," Anu Bhagwati, executive director of SWAN and a former Marine Corps captain, said in a statement sent to The Huffington Post. "Rather than enforcing a merit-based system, today's military bars all women regardless of their qualifications from access to prestigious and career-enhancing assignments, positions and schools, and is thus directly responsible for making service women second-class citizens."

Bhagwati, along with Ariela Migdal, senior staff attorney for the ACLU Women's Rights Project, and Elizabeth Gill, staff attorney for the ACLU of Northern California, announced the lawsuit in a press conference Tuesday.

According to recent Pentagon data, active-duty female personnel make up some 15 percent -- more than 280,000 members -- of the more than 1.4 million troops in the U.S. Armed Forces. Yet a Defense Department report from February 2012 found they constitute only a little more than 7 percent of general officers.

The military's official policy toward servicewomen, which is based on the 1994 Direct Ground Combat Definition and Assignment Rule, generally bars servicewomen from assignment to units below the brigade level when the units' primary mission is direct ground combat, according to Defense spokeswoman Eileen Lainez. The rule gives the services discretion to further restrict women from positions that entail physically demanding tasks, special operations, stationing or cohabitating with combat troops, or a lack of privacy.

In May 2012, the Defense Department began implementing plans to officially open 14,325 jobs to women as the result of changes to the 1994 policy that bar women from serving in direct ground combat units below the brigade level or in units co-located with ones closed to them. The Pentagon has granted an additional 1,100 exceptions allowing women to be assigned to ground combat units below the brigade level in order to "gain experience to help assess any future changes," Lainez said in an email to The Huffington Post.

"Incremental reform is always welcome, but at this point it falls short," said the ACLU's Migdal on the press call.

Women already serve in combat, although often that service is not officially recognized, which can obstruct these women's professional advancement or access to benefits. Further, servicewomen had already served in many of the positions opened in May, though not at the level now officially acknowledged. As of May, just over 19 percent of the 1.2 million positions available in the military were open to women.

Pentagon officials say they plan to develop gender-neutral physical standards and research further reform to the combat exclusion policies. Defense Secretary Leon Panetta earlier directed the services to update him in November with an evaluation of the reforms and "an assessment of the remaining barriers to full implementation of a gender-neutral assignment policy," Lainez said.

"It would be inappropriate to speculate on the content of those recommendations, and any decisions the Secretary may come to," Lainez said in an email on Tuesday.

When informed of the ACLU suit being filed, she reiterated the department's policy of declining to comment on pending litigation.

Panetta has also called for more women in command positions, in part to help combat the prevalence of sexual assault in the military.

Sen. Kirsten Gillibrand (D-N.Y.), a member of the Senate Armed Services Committee, has introduced legislation calling for repeal of the combat exclusion policies as part of the Senate's version of the National Defense Authorization Act.

"Women are already fighting and dying for our country shoulder-to-shoulder with their brothers in uniform on the frontlines, but without the formal recognition that is essential for them to advance and obtain the benefits they have earned," Gillibrand said Tuesday in an emailed statement to The Huffington Post. "I am hopeful Congress will seize the opportunity and take the first legislative step towards repealing the Ground Combat Exclusion Policy when we debate the Defense bill in the coming weeks."

Lainez, the Defense Department spokeswoman, described the recent reforms as the beginning, not the end, of a process.

"These decisions, and those that may follow, are based on valuable insight from the services, joint staff and combatant commanders, after over a decade of war," Lainez said. "Our goal is to ensure that the mission is met with the best qualified and most capable people, regardless of gender."

This story has been updated with comments from plaintiff Mary Jennings Hegar and ACLU attorney Ariela Migdal.

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