Women have been serving in the military in steadily increasing numbers for decades. Nevertheless, the military remains one of the few areas in which the U.S. government decides what roles are open to women based on de jure exclusions. This Article examines the law governing de jure classification, noting that a mere normative belief about women’s proper place in society is an insufficient basis to justify a sex-based exclusion. It then probes the most common rationale advanced in support of the continued de jure exclusion of women: physical strength. The Article examines four problems with the physical strength rationale: (1) stereotyping – the assumption that no woman can do the job without testing the abilities of the individual woman; (2) differential training – the failure to account for the potential for improvement for women who often have less prior physical activity; (3) trait selection – measuring only tasks that are perceived to be difficult for women, while ignoring equally mission critical tasks that women may be better at performing; and (4) task definition – not considering if there are other ways to get the job done. Each of these problems reveals a distortion based on an underlying normative belief that the military should be a male realm. It is this belief, not the reality of physical strength, that motivates the de jure exclusion, the very type of justification forbidden by law, and detrimental to women, men, and the military mission.
Maia Goodell, Physical-Strength Rationales for De Jure Exclusion of Women from Military Combat Positions, 34 SEATTLE U. L. REV. 17 (2010).
Admiralty Commons, Comparative and Foreign Law Commons, Constitutional Law Commons, Defense and Security Studies Commons, Gender and Sexuality Commons, Law and Gender Commons, Law and Society Commons, Law of the Sea Commons, Military Studies Commons, Military, War, and Peace Commons