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Military Law,
Civil Rights

Mar. 9, 2021

Gender issues in the ranks

Does the military really want women in its ranks?

4th Appellate District, Division 3

Eileen C. Moore

Associate Justice, California Courts of Appeal

In a former life, Justice Eileen Moore served as a combat nurse in Vietnam in the Army Nurse Corps. She was awarded the Vietnam Service Medal, the National Defense Service Medal and the Cross of Gallantry with Palm. She is a member of Vietnam Veterans of America. Since 2008, she has chaired the Judicial Council' Veterans and Military Families Subcommittee. She is a member of the American Bar Association's Standing Committee on Armed Forces Law, is an advisor to the California Lawyers Association's Military and Veterans Committee and the Orange County Veterans & Military Committee as well as a founding member of USVets' Women's Advisory Committee. She is the author of two award-winning books, Race Results and Gender Results.

"I don't mind living in a man's world as long as I can be a woman in it." -- Marilyn Monroe

From the Revolutionary War to present day conflicts, women have proudly served in the military. During World War I, about 35,000 women officially served as nurses and support staff. During World War II, 140,000 women served in the U.S. Army and the Women's Army Corps, performing critical jobs such as military intelligence, cryptography and parachute rigging. Over 1,000 women flew aircraft for the Women Airforce Service Pilots.

In 1948, President Harry Truman signed the Women's Armed Services Integration Act into law. That was the first time women were recognized as full members of the armed services. During the Vietnam War, 7,000 American military women served in Southeast Asia. The Pentagon's Combat Exclusion Policy for women was lifted in 2013, and qualified women were authorized for full combat positions in 2016.

Despite the fact that women can now serve in all jobs in the military, the number of women volunteering to serve is only marginally increasing. Meanwhile in the civilian world, the number of women has been rising in many fields, and their economic clout is dramatically increasing. Women are starting and running new businesses at a rapid rate. In politics, women are being elected all over the country. About a third of the lawyers and doctors are women. While the number of female engineers is not that high, younger women are entering the field at a dramatic pace. More and more, women are the breadwinners of the family and 40% of households are now headed by women.

This article will explore some of the reasons why the numbers of women are growing in many areas of the civilian world, but only slightly increasing in the military. Recent reports of federal agencies draw much needed attention to the problems of gender bias and sexual assaults in the military, and may provide some reasons that not many women are entering or staying in the military.

DACOWITS

Shortly after Congress enacted the Women's Armed Services Integration Act in 1948, a federal advisory committee was formed to monitor and provide advice relating to service women. The Defense Advisory Committee on Women in the Services, or DACOWITS, was established in 1951. The committee is composed of 20 prominent civilians appointed by the secretary of defense. It usually meets four times a year. Its mandate is to provide the secretary of defense with independent advice and recommendations on matters and policies relating to the recruitment of service women in the Armed Forces of the United States.

The DACOWITS group interviews service women, questions military leaders and visits military bases to study how the military structure promotes, retains and treats women. Its last annual report was in 2020.

That latest DACOWITS report states that women are discouraged from joining the military because of concerns about sexual assaults. Participants in nearly all the focus groups reported that gender bias exists in the military. They said that gender bias was more evident in occupational specialties that were recently open to women.

An appendix to the most recent report states that pregnant servicewomen were stigmatized and that pregnancy had a negative effect on the unit. Women believed that pregnancy harmed their career in the military, as some viewed pregnancy detrimental to mission readiness. A male officer remarked, "I guess it can be perceived by the unit, not necessarily rightfully or wrongfully, that the female has chosen to be pregnant instead of working." A male enlisted man said that pregnant service members "are viewed as dead weight." An enlisted woman reported that "women have been shunned after getting pregnant." Another enlisted woman described how she was hesitant to tell people she was pregnant because her unit would be disappointed in her. A woman officer said a toxic environment is created when a pregnant woman cannot share the load.

DACOWITS also found that some military guidelines for physical fitness are based on outdated science. For example, height, weight and body fat standards are inappropriate for women. It points out that improper or ill-fitting equipment and clothing, such as combat boots, body armor and sports bras, contribute to the high rate of injuries among active duty women.

An article titled "The DoD's Body Composition Standards Are Harming Female Service Members" is listed on DACOWITS' website. The article looks at the two parts of the Department of Defense's body composition standard. The first part is the weight for height calculation, developed nearly 200 years ago by a Belgian astronomer using a non-diverse Belgian sample. It is called the Body Mass Index and often mislabels people with muscular builds and those of non-Caucasian ethnicities as obese. The second part of the body consumption standard is the estimation of body fat percentage, calculated by measuring men around their abdomen and neck. But women are measured around their buttocks, the place where many women hold the largest deposit of fat. One female Marine, who twice competed on American Nija Warriior, was measured above allowable body fat despite being 30 lbs. below the maximum allowable DoD weight.

As a consequence of having to meet standards that were never meant for women, service women are doing irreversible damage to their bodies to try to meet those standards. Twice a year, each has to weigh in, and military eating disorders are six to 10 times the civilian equivalent, approaching up to 97.5% as they approach the weigh-in.

High numbers of injuries are another problem military women face. Because of estrogen, women have fewer muscles and less lean body mass and greater ligament laxity than men, meaning less power and performance. The dissimilarities in the male and female pelvic structure predispose women to a higher risk of pelvic stress fractures, femoral fractures, anterior cruciate ligament, ACL, tears and other injuries. The diagnosis of pelvic stress fracture has been made in one in 367 female recruits, compared to one in 40,000 male recruits, a condition that requires a long length of rehabilitation and often has complications. Back injuries are also more common in military women, even when given a lighter load.

Since 1978, DACOWITS has recommended that DoD procure gender specific clothing, equipment and gear, including running shoes designed for the shape of women's feet, shock absorption capabilities in combat boots to reduce stress fractures, sports bras to prevent independent breast movement and reduce breast pain, clothing and body armor specifically made for women's bodies, and back packs customized for a woman's body. But the DoD has not fully implemented these recommendations.

DHB

The Defense Health Board, or DHB, is a federal advisory committee to the secretary of defense that provides independent advice and recommendations to maximize the safety, health and quality of life for DoD beneficiaries. In November 2020, it reported to the DoD on health care for active duty women.

In its recent report, DHB reported that gender-related sexual trauma continues to increase. The report notes that hypermasculinity and militarism fosters a climate that supports military sexual violence. It states that culturally supported gendered roles and military structure contribute to the staggering number of sexual assaults committed by higher-ranked military personnel. The DHB report recommends that allegations of sexual assaults should be reported and investigated promptly including medical forensic examinations. The report states there should be timely adjudications and delivery of judgment, and that, whenever possible, commanders should reinforce a culture of zero-tolerance.

Making matters worse for women, DHB says they have limited access to urologic/gynecologic care or for medical and mental health care after sexual assaults. The report says there are limitations in the skillsets of personnel to react to assaults.

The DHB report analyzed pregnancy discrimination in all the branches of service, and that the branches do not uniformly apply or execute policies to support breastfeeding. The report states that some military leaders perceive allocated break times for pumping breast milk as a way for active duty women to avoid work, and that women feel resentment when they have to do that during working hours.

DHB says that gynecology related conditions such as urinary tract infections are more common in severe climate and environment, but that women have limited access to services for self-care of treatable and preventable urogenital conditions that hinder their capabilities. It recommends that the DoD allow and enable women to perform self-care by supplying testing kits and hygiene devices.

Regarding physical fitness, the DHB report stresses that urgent action is needed to minimize the undesirable gender-associated best practices for fitness, safety and performance. The report notes the musculoskeletal injury risk to women is increased by a number of factors. One is that both basic training and ongoing fitness-for-duty evaluations have a one-size-fits-all approach that does not recognize that women are more susceptible to overuse and lower limb injuries, noting that women attempt to meet gender-neutral health fitness standards without access to gender-customized equipment.

GAO

The United States Government Accountability Office, or GAO, is an independent nonpartisan agency that works for Congress. It is often referred to as a congressional watchdog. The GAO reported to Congress in 2020 regarding what is needed for recruitment and retention of active duty female personnel.

GAO told Congress that the DoD experienced slight increases in the overall percentage of female active-duty servicemembers from fiscal year 2004 through 2018, and that females had higher annual attrition rates than corresponding males. Promotions for the female enlisted population were lower than those for males, but promotions for women officers were higher than their counterparts. The report strongly criticizes the DoD for its lack of guidance, plans and goals to retain women in their ranks, and told Congress that women officers often do not want to report they were sexually assaulted. Instead of reporting, they separate from the service. GAO also reported to Congress that pregnancy is one of the primary reasons women leave the military.

Conclusion

Perhaps the problems stem from a disconnect between the policymakers and the frontline personnel charged with applying those policies, because when one views the websites of the DoD and the military branches, it certainly appears that women are desired in the military. The Army's Sexual Harassment Assault Response Prevention program, SHARP, specifically lists increased training about these issues as one of its goals. The Army has also increased the diversity of body armor to accommodate women's bodies, such as the Female Urinary Diversion Device, FUDD. Notwithstanding innovative policies, service women are experiencing bias and sexual assaults.

An Aug. 3, 2020, Air Force Times article stated that promising female aviators feel they have to stay silent and endure sexual harassment to avoid derailing their careers. In one class, the women were told by the flight commander there are two types of women who fly in Combat Air Forces: first, there are the "bros," who have "tough skin" and simply shrug off offensive comments, and second there are those women who are "easily offended." The commander told them it is the "bros" who are likely to be chosen for leadership positions.

According to a Jan. 11, 2021, article in Military.com, the Marine Corps has been training women to be drill instructors. But it hasn't been able to take that crucial step of assigning women to traditional training battalions. When one female noncommissioned officer asked for such an assignment, she was told, "We need to find the best man for the job." That leaves these trained women facing resentment because they don't have to do the work for which they are receiving special assignment pay.

As reported by the New York Times Magazine, an Air Force technician was the only woman on a team, but the announcement for a major movement was made only in the male barracks, and she was nearly left behind. A Navy woman was assigned to a ship, but was told they didn't have anywhere for her to sleep. A woman Marine said, "Being a woman in the military is basically signing a sexual assault/harassment contract."

Despite the military's stated policies, it is still not equipped to have women in all of its ranks. It could very well be that so long as young women are not required to register for the draft the way young men are, there will never be gender equality within the military. The National Coalition for Men has been unsuccessfully litigating in federal courts for years, claiming that male-only selective service registration is unconstitutional. Last August, the 5th U.S. Circuit Court of Appeals issued National Coalition for Men v. Selective Service System, 969 F.3d 546 (2020). That court said it was bound by stare decisis, citing the U.S. Supreme Court's holding in Rostker v. Goldberg, 453 U.S. 57 (1981), and ordered the action dismissed. In Rostker, after registration for the draft was reinstated in 1975 and Congress exempted women, the high court held that Congress had acted within its constitutional authority to raise and regulate armies and navies.

The website for the Selective Service Commission says that "if given the mission and modest additional resources, it is capable of registering and drafting women with its existing infrastructure." And the March 2020 report of the Commission on Military, National and Public Service recommends that Congress eliminate the male-only registration requirement and expand it to all individuals of applicable age.

Former members of Congress Duncan Hunter and Ryan Zinke, who vehemently disagreed with the military's decision to open combat positions to women, reduced the issue of women serving in the military to a joke, according to a 2020 law review article. It says that in 2016 the two proposed legislation that would require women to register for selective service "as a dare," and then voted against their own proposed statute. 89 UMKCLR 217

The military provides valuable job training, and often acts as a steppingstone to respected civilian career opportunities. Bias against and safety for women who seek to serve their country is a serious issue that deserves thoughtful consideration. It is no joke. 

#361767


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