SAN FRANCISCO (CN) – The United States government can’t escape a lawsuit claiming it applies biased rules based on gender stereotypes to block female soldiers from serving in combat roles, a federal judge ruled from the bench Thursday.
U.S. District Judge Edward Chen refused to dismiss a lawsuit challenging lingering barriers to military service for women. Chen said he could not yet determine if Department of Defense policies were enacted for sexist reasons as alleged.
“There’s a dispute here about what’s the real rationale,” Chen said in court Thursday. “Is it a sufficiently supported one? I don’t’ see how we can resolve that on a motion to dismiss.”
The litigation started in 2012 when four servicewomen, including two Purple Heart recipients, challenged a 1994 policy that barred women from serving in 238,000 military positions.
In 2013, then-Defense Secretary Leon Panetta rescinded that policy, but it was followed three years later with a new “Leaders First” directive, which only allows women to serve in combat units with at least two female leaders.
The “Leaders First” policy, which only applies to the U.S. Army and Marine Corps, has effectively limited where women can serve, forcing them into a few brigades that some Army officials have referred to as “Amazon units.”
Because most states’ National Guard troops have failed to meet “Leaders First” requirements, women in 48 states cannot take on infantry or armor positions, nor can they be assigned to combat units as entry level servicewomen, unlike men, according to the complaint.
Service Women’s Action Network, or SWAN, is a female soldier advocacy group, which now serves as the sole plaintiff in the lawsuit. SWAN is also challenging the Marine Corps’ practice of separating recruits by gender in basic training.
“It stigmatizes women, and makes them start out their careers on different footing,” said Elizabeth Gill, an ACLU lawyer representing SWAN, in a brief interview after the hearing.
Chen’s decision to advance the lawsuit comes one day after U.S. Defense Secretary Jim Mattis told a group of cadets in Virginia that “the jury is still out” on whether women can successfully serve in infantry roles.
SWAN’s lawsuit cites multiple prior statements made by Mattis, including a 2015 speech in which he said that if women served in combat roles, America’s enemies would no longer fear “America’s awesome determination to defend herself.”
In court Thursday, Chen questioned why Mattis’ statements are relevant, given that the challenged policies were put in place during the Obama administration.
Plaintiffs’ attorney Steven Perry, of Munger Tolles & Olson, argued that Mattis continues to make day-to-day decisions that limit female soldiers’ opportunities in the military.
The U.S. government says it expects to phase out the “Leaders First” policy by 2020.
“It will naturally phase out” as more women assume leadership roles, U.S. Justice Department lawyer Andrew Carmichael told the judge.
But those assurances hold little weight with the plaintiff, who was told three years ago that combat units would be fully gender-integrated by 2016.
Rejecting arguments that SWAN lacks standing to sue, Chen found that because the non-profit has diverted resources to deal with the challenged policies, it has established organizational standing.
To establish associational standing, the judge said he would grant SWAN leave to amend its complaint to specify how its members are affected by the Marine Corps segregated training policy.
The next step for SWAN is to start seeking records from the Department of Defense that might reveal why it implemented the allegedly discriminatory policies.
“There’s no reason why women can’t be on equal footing,” Gill said, adding that the lawsuit aims to tear down “artificial barriers based on gender alone.”
The judge said he would issue a written ruling soon, and he scheduled a case management conference for Nov. 19.