Draft registration called last legal form of sex discrimination

Requiring men, but not women, to register for the military draft is unconstitutional sex discrimination, according to the American Civil Liberties Union, which is asking the U.S. Supreme Court to overturn the U.S. system of Selective Service.

The ACLU says compulsory selective service registration is one of the only remaining legally mandated forms of sex discrimination. It “reinforces the notion that women are not full and equal citizens, and perpetuates stereotypes about men’s and women’s capabilities,” the ACLU wrote in its petition to the court.

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It is representing a controversial men’s rights organization, the National Coalition for Men, in a petition before the nation’s highest court seeking to overturn the 1948 Military Selective Service Act. The current system aims to have a list of young men who could be called up for military service if the U.S. government authorizes a draft. 

Nearly 50 years without a draft, but failing to register can be costly

The U.S. has not had a military draft since 1973, but men have been required since 1980 to register for selective service on their 18th birthday. The current system was enacted by President Jimmy Carter in response to the Soviet invasion of Afghanistan.

At the time, Carter proposed that Congress change the Military Selective Service Act to include women. But Congress rejected the idea on the grounds that women were not permitted to serve in combat.

Currently, more than 233,000 women serve on active duty, according to the Department of Defense. The total of both men and women in service is more than 1.3 million, as of November.

In 1994, President Bill Clinton told Congress, “Maintaining the Selective Service System and draft registration provides a hedge against unforeseen threats and a relatively low-cost ‘insurance policy’ against our underestimating the maximum level of threat we expect our Armed Forces to face.”

According to the Selective Service System website, in 2018, 91% of eligible men aged 18 through 25 years old, nearly 17 million individuals, were registered.

Failure to register can result in a loss of eligibility for student aid, disqualification from government jobs and potentially, criminal prosecution, although such prosecutions are rare. And because the system requires registration of virtually all men who live in the U.S., whether or not they are citizens, failure for some can imperil their citizenship or residency status.

Court upheld Selective Service 40 years ago

The Supreme Court heard a sex-discrimination challenge to the law in 1981. In a case called Rostker v. Goldberg, the court upheld the law, partly on the grounds that women were not permitted to serve the military in combat roles. In other words, according to the ACLU, the court used one form of sex discrimination to justify another.

The ACLU notes that the Rostker decision also relied partly on a congressional report that said, “drafting women would place unprecedented strains on family life.”

Since that ruling, the military has opened all roles, including combat, to women. That change came in a series of decisions and followed another legal challenge filed by the ACLU.

More than 2,900 women, according to the ACLU, “have since served with distinction in combat positions across all branches of the military.” 

And the petition states, “It is time to overrule Rostker. The registration requirement has no legitimate purpose and cannot withstand the exacting scrutiny sex-based laws require.

“The Department of Defense and the National Commission on Military, National, and Public Service (“Commission”) unequivocally acknowledge that requiring women and men alike to register would ‘promote fairness and equity’ and further the goal of military readiness.”

As of Jan. 1, 2016, the military has no restrictions based on gender.

Commission recommends women’s registration

The National Commission on Military, National, and Public Service provided a report to Congress in 2020 recommending that Selective Service registration be extended to women. “This is a necessary and fair step, making it possible to draw on the talent of a unified nation in a time of national emergency,” the report states.

And, it adds, “The current disparate treatment of women unacceptably excludes women from a fundamental civic obligation and reinforces gender stereotypes about the role of women, undermining national security.”

It describes testimony it received from people who “expressed concern over a disconnect between what younger generations value and how they perceive the military, particularly regarding the treatment of women and LGBTQ individuals.”

Law “sends a message” harmful to women, ACLU says

Ria Tabacco Mar, director of the ACLU Women’s Rights Project, said the law “sends a message, not only that it’s up to men to serve our country in this particular way, and also that women are unfit to do so.”

The law gives men until their 26th birthday to register, Mar noted. If they fail to register by then, they can’t go back and fix it. That means, if a man fails to register and then later learns he faces a punishment like being denied a government job or citizenship, there’s nothing he can do.

While prosecutions are rare, Mar said Selective Service continues to forward the names of thousands of men who fail to register to the Justice Department. Conviction for a violation carries up to five years in prison and a fine of up to $250,000.

Limited exceptions to registration

According to Selective Service, one group of women is required to register. Transgender women who were born men must register because the system is based on the gender at birth. Conversely, transgender men who were born women are not required to register.

Disabled men are also required to register, although there are some exemptions. They include men who are in a hospital, nursing home, long-term care facility or mental institution on their 18th birthdays. They must remain until their 26th birthday and have no breaks of institutionalization 30 days or longer. Also exempted are men who are confined to home, including group homes, and cannot leave without medical assistance, such as by ambulance.

Undocumented men are required to register. However, men living in the U.S. on non-immigrant visas are not.

Selective Service System says it can register women if required

The ACLU says its petition seeks only to overturn the Selective Service System, and not to require women to register. If Congress wants to have a draft registration, according to the ACLU, it would then have to pass another law that doesn’t discriminate on the basis of sex.

The Selective Service System says on its website that if it’s directed to include women, it is “capable of registering and drafting women with its existing infrastructure” and “modest additional resources.”

National Coalition for Men called “unlikely” advocate for women’s rights

Mar said she recognizes that representing an organization like the National Coalition for Men “may seem like an unlikely way of advancing women’s rights,” but she added that the case is “not an endorsement of the organization. It’s an endorsement of the idea that sex discrimination has no place in our laws.”

The Southern Poverty Law Center says the coalition is part of the “male supremacy” movement, which it describes as a “hateful ideology advocating for the subjugation of women.” Among other things, the law center says the NCFM uses litigation to challenge what they perceive as discrimination in favor of women. For example, the center sued a women’s business networking organization alleging sex discrimination against men. 

The coalition describes itself as a “nonprofit educational organization that raises awareness about the ways sex discrimination affects men and boys.”

NCFM President Harry Crouch said the Southern Poverty Law Center doesn’t “have a clue what we do.”

Crouch said any controversy about the group may be because “we take unpopular positions.” But he added, “we don’t allow hate and we don’t allow hateful members. We’re not taking away anybody’s rights, regardless of gender. We’re just trying to make sure everybody’s treated as fairly as possible. Men are the low person on the totem pole. Many people don’t believe that because they don’t study it. They reject the evidence.”

Crouch said the organization has “an awful lot of female members, and I suspect if we were a misogynist organization, that would not be true.”

Crouch added the organization was “ecstatic to welcome the ACLU into this case” and he hopes to work with that organization in the future.

The coalition initiated the Selective Service legal case in 2013 and won an initial victory in Texas. But the Fifth Circuit Court of Appeals overturned the decision on the basis of the earlier Rostker v. Goldberg ruling.

The NCFM issued a statement in response to the appeals court defeat: 

“The National Coalition for Men is disappointed in the Fifth Circuit Court of Appeal’s decision denying women the right to register with the Selective Service System for the U.S. Military draft. This right was advanced by the many women’s equal rights organizations that supported NCFM at the Fifth Circuit by filing an amicus brief in support of NCFM.”

Among the women’s rights organizations that joined NCFM in the case were the National Organization for Women Foundation, the National Women’s Law Center and the Women’s Law Project.

Case faces long odds for consideration

The Supreme Court accepts only a small percentage of cases it’s asked to consider. According to the court’s website, it agrees to hear 100 to 150 of more than 7,000 cases it’s asked to review each year.

Mar said the ACLU filed its petition on Jan. 8. Generally, the government has 30 days to respond to such a petition, but it usually asks for and is granted 30-day extensions. Given the change in administrations, Mar said she expects the government will get at least that amount of time. 

She predicted the court won’t decide whether to take the case until the spring at the earliest. If the case is accepted, it’s likely to be argued in the court’s next term, which starts in October.

Contact Elaine Silvestrini at Elaine@legalexaminer.com. Follow her on Twitter at @WriterElaineS.