Deference Over Equality: Evaluating the Scope of Title VII Protections for Women in the Military

Title VII of the Civil Rights Act of 1964 was devised with the goal of protecting individuals against employment discrimination on the basis of sex, as well as race, color, religion, and national origin [1]. This statute has been a vital legal mechanism for promoting gender equality in the workplace and ensuring that employment decisions are based on merit rather than personal characteristics. However, courts have consistently held that Title VII does not apply to uniformed members of the armed forces. Most recently, this principle was reaffirmed in Jackson v. Modly (2020), where the D.C. Circuit upheld the military’s exemption from Title VII protections [2].

The exclusion of military personnel from the scope of Title VII reflects a broader judicial pattern. The Supreme Court has repeatedly deferred to Congress and the Pentagon on all matters related to military policy, citing the military’s unique considerations of combat readiness, discipline, and unit cohesion. As a result, decisions about inclusion, exclusion, and discrimination in the military often lie outside judicial review. That deference grants enormous discretion to non-judicial bodies and poses immense vulnerabilities for women in combat roles, as they lack the legal guarantees that protect those in civilian careers.

Admittedly, despite the long-standing deference of the courts, there has been some progress in advancing equitable access to opportunities in the military. In 2013, Secretary of Defense Leon Panetta announced the Pentagon’s decision to lift the ban on women serving in combat, a landmark step toward gender integration in the military [3]. Implementation began in January 2016, allowing women to enter previously restricted combat arms positions [4]. Yet despite this progress, women in combat still lack full statutory protections available in civilian employment. This is particularly alarming because if future policy changes restricted women’s access to combat roles once again, women engaged in these fields would have little legal protections available to them with which they could challenge the decision.

Judicial deference to the military has deep historical roots. Notably, Burns v. Wilson (1953) established that civilian courts could not review most military court decisions, concluding that, "the rights of men in the armed forces must perforce be conditioned to meet certain overriding demands of discipline and duty, and the civil courts are not the agencies which must determine the precise balance to be struck in this adjustment,” thus establishing a sharp divide which puts military members distinctly within the jurisdiction of military, not civilian courts [5]. Subsequent Supreme Court cases have continually upheld the practice of judicial deference to military justice. In Parker v. Levy (1974), the Supreme Court held that the military could punish an Army doctor for antiwar speech under the Uniform Code of Military Justice (UCMJ), concluding that the military exists as a “separate society” from that of the civilian world, in which free speech (though protected under the First Amendment) could be limited with the goal of promoting order and discipline within ranks [6]. Similarly, in Goldman v. Weinberger (1986), in which the Court ruled that the Air Force could restrict Airmen’s ability to wear religious accessories such as yarmulkes with the intent of maintaining uniformity and unit cohesion. Congress later intervened to reverse this Air Force policy through legal statute, underscoring that change must typically result from legislation alteration, not judicial review [7].

In Rostker v. Goldberg (1981), the Supreme Court again deferred to Congress, upholding the male-only Selective Service draft on the grounds that Congress had carefully studied the issue and determined that combat readiness justified excluding women. Because “perhaps in no area has the Court accorded Congress greater deference than in the area of national defense and military affairs,” the majority emphasized that Congress’s broad constitutional authority over military matters could not be ignored [8]. In effect, Rostker v. Goldberg cemented a consistent doctrine of Court behavior. In cases in which military effectiveness is seen to be in jeopardy, the judiciary defers to legislators, thus limiting the reach of civil rights protections, including Title VII, within the armed forces.

Due to this long-standing tradition, efforts to extend Title VII of the Civil Rights Amendment to military service members have been similarly rejected by courts. While Title VII has been widely effective in combating discrimination in civilian workplaces, it has virtually no application in the context of uniformed military service. Jackson v. Modly (2020) is a recent example of the limited application of Title VII. After a former Marine alleged sex and race discrimination under Title VII, the D.C. Circuit Court system upheld the military’s power of unchecked decision making, affirming an ongoing consensus rule that Title VII does not apply to members of the military [9].

Despite claims that the Due Process Clause of the Fifth Amendment is sufficient to prevent discrimination in military employment, in practice, this has been largely unsuccessful. The Fifth Amendment’s Due Process Clause guarantees that the federal government cannot deprive citizens of “life, liberty, or property, without due process of law” [10]. This clause has historically been interpreted by the Supreme Court to implicitly grant individuals Equal Protection, with discrimination existing as a contradiction to these granted rights. Though the Equal Protection principle of the Fifth Amendment has been utilized to prohibit sex discrimination by the federal government, its application in military contexts remains limited. In 2021, National Coalition for Men v. Selective Service System, challengers to the male-only draft argued that it violated the Equal Protection principle under the Due Process Clause, referencing the principle established in United States v. Virginia (1996), which held that gender-based exclusions require an “exceedingly persuasive justification” [11, 12]. However, the Supreme Court dismissed the case, reasoning that Congress has the authority to set draft policy and was actively reviewing the issue [13]. This dismissal highlights legislative primacy in military affairs, leaving the judiciary largely hands-off in questions of gender equality.

Moreover, though some limited legal milestones have advanced the cause of gender equity in situations tangentially related to the military, these cases remain limited in scope and only address non-combat military contexts. In United States v. Virginia (1996), the Court struck down the Virginia Military Institute’s male-only admissions policy, holding that state-funded institutions must admit women, with such discrimination needing “exceedingly persuasive judgement,” to lawfully exist [14]. In Frontiero v. Richardson (1973), the Supreme Court struck down a system of spousal benefit administration in the military, which offered different benefits based on the gender of the servicemember [15]. Taken together, these cases demonstrate the judiciary’s willingness to intervene to enforce gender equality in certain contexts, specifically those related to educational admissions and administrative processes. This reflects a concerning trend. Those cases which affect more administrative processes that do not infringe upon the literal function of the military have a higher level of judicial authority, while those that affect the military’s tactical capacity defer more to Congress and the Pentagon to make decisions.

Thus, women’s integration into combat roles occurred not through court rulings but through political decision-making. Following a long history of exclusion, Secretary Panetta’s 2013 directive ended the combat ban, and Secretary Ash Carter’s 2015 announcement opened every military occupation to women without exception. While several lawsuits, most notably Hegar v. Panetta (2012), sought to challenge the constitutionality of combat restrictions, these cases were dropped following the Pentagon’s decision to change its policy [16]. This ban removal was the response to rapidly increasing social and political pressure surrounding women’s role in combat, especially due to the American military’s involvement in combat situations in Iraq and Afghanistan, with large numbers of troops, including many women deployed to both regions. While women were officially barred from all combat roles, during combat situations, lines were blurred between combat and non-combat roles. However, due to official regulations, these women could not be recognized in combat roles for their contributions in combat situations [17]. In 2013 and 2015, the Pentagon responded to this call with policy change.

Despite this formal opening of roles, however, many of the protections available to women in civilian careers, such as Title VII, are still not available to women serving in the armed forces, leaving them vulnerable to policy shifts. Although women have the same opportunities as men in the military, they are in a position of immense vulnerability. If exclusions in any form are reapplied, female service members have little legal power with which they can fight changes.

This is particularly concerning considering recent political transformations in internal military policy. In September of 2025, Secretary of War Pete Hegseth announced plans to increase mandatory standards to a “gender-neutral standard” of 70% male score on fitness tests. That is, both men and women will be expected to perform to the male standard on these tests [18]. Although framed largely through a lens of equality through fitness uniformity, these measures could be utilized to disproportionately exclude women from combat roles.

Without the protection of Title VII or equivalent policies, women in the military are offered few protections to challenge policies that they believe discriminate or disproportionately disadvantage them. Due to the longstanding deference of the Courts to Congress and the Pentagon, Courts will be unlikely to intervene in this matter. This leaves the matter to rely almost entirely on policymakers to maintain women’s role in combat. If policymakers choose to make certain changes, such as redefining the term “combat role” or further altering fitness requirements, women in the military as a whole, not just those in combat roles, could face severe limitations in position choice without a standard for legal protections.

The opportunities and protections for women in combat roles reflect the long and complicated relationship between military autonomy, Congressional authority, and judicial deference. The longstanding tradition of refusal to apply Title VII to members of the armed forces has caused women to lack sufficient legal protections against changes in policy which have the potential to threaten their careers. Therefore, it is clear that the future of women in combat will rely less on legal battles and more on the decisions and priorities of military leaders, Congress, and national policymakers.

Footnotes

[1] U.S. Equal Employment Opportunity Commission, “Title VII of the Civil Rights Act of 1964,” EEOC, https://www.eeoc.gov/statutes/title-vii-civil-rights-act-1964.
[2] Jackson v. Modly, No. 18-5180 (D.C. Cir. 2020).
[3] Elisabeth Bumiller and Thom Shanker, “Pentagon Set to Lift Ban on Women in Combat Roles,” New York Times, January 23, 2013, https://www.nytimes.com/2013/01/24/us/pentagon-says-it-is-lifting-ban-on-women-in-combat.html.
[4] Emma Moore, “Women in Combat: Five-Year Status Update,” Center for a New American Security, March 31, 2020, https://www.cnas.org/publications/commentary/women-in-combat-five-year-status-update.
[5] Burns v. Wilson, 346 U.S. 137, 140 (1953).
[6] Parker v. Levy, 417 U.S. 733 (1974).
[7] Goldman v. Weinberger, 475 U.S. 503 (1986).
[8] Rostker v. Goldberg, 453 U.S. 57 (1981).
[9] Jackson, No. 18-5180 (D.C. Cir. 2020).
[10] U.S. Const. amend. V.
[11] National Coalition for Men v. Selective Service System, No. 19-20272 (5th Cir. 2020).
[12] United States v. Virginia, 518 U.S. 515 (1996).
[13] National Coalition for Men v. Selective Service System, 593 U.S. ___ (2021) (statement of Sotomayor, J., respecting the denial of certiorari).
[13] Frontiero v. Richardson, 411 U.S. 677 (1973).
[14] United States v. Virginia, 518 U.S. 515 (1996).
[15] Frontiero, 411 U.S. 677 (1973).
[16] American Civil Liberties Union, “Hegar, et al. v. Panetta: The Legal Challenge to the Combat Exclusion Policy,” April 4, 2017.
[17] Kristy N. Kamarck, “Women in Combat: Issues for Congress,” CRS Report R42075, Washington, DC: Congressional Research Service, December 13, 2016.
[18] Pete Hegseth, “Secretary of War Pete Hegseth Addresses General and Flag Officers at Quantico, Virginia,” Transcript, Sept. 30 2025, U.S. Department of War, https://www.war.gov/News/Transcripts/Transcript/Article/4318689/secretary-of-war-pete-hegseth-addresses-general-and-flag-officers-at-quantico-v/.