The Military and Gender Equality: Developments in India and the USA

Arushi Gupta

Maharashtra National Law University, Mumbai

A recent landmark judgment of the Supreme Court of India, and the continuation of protracted litigation and policy posturing in the United States, provides a timely opportunity to assess the constitutional intersection of gender equality and the regulation of the military.

India

The employment of women in the Indian Army has a chequered history. In 1950, by section 12 of the Army Act, women were declared to be ineligible for enrolment or employment in the Army except in such divisions specified by the Central Government. Since 1992, the Government has specified various army divisions in which women may be employed but, importantly, this employment has been limited to Short Service Commissions (“SCCs”) with a maximum term of 14 years. This all changed, however, with the recent judgment of the Supreme Court in Secretary, Ministry of Defense v. Babita Puniya.

In this case, the Petitioners – women employed in the Army on SCCs – sought eligibility for Permanent Commissions (PCs) on the same terms as men. In the Supreme Court, the Army sought to justify its different policies for men and women on the basis of Article 33 of the Constitution, which allows Parliament to restrict the rights of members of the Army, and on the basis of “policy considerations” relating to “pregnancy, motherhood, and domestic obligations”. The Court rejected the Army’s arguments, instead holding that women are entitled to PCs on par with men.

In recent years, the Court has taken steps to advance substantive equality, and refashioned equality from the “cribbed, cabined and confined … limits” of the anti-classification enquiry. The test of anti-classification enquires whether there is an intelligible differentia between the classified that bears a rational nexus to the object of the measure. In Anuj Garg, the Supreme Court imported the “anti-stereotyping principle” into determining “intelligible differentia”. In Babita Puniya, the Court relied on Anuj to dismantle the Army’s arguments based on “policy considerations” purportedly derived from the physiological differences between the sexes, the domestic obligations of women, the “peculiar dynamics” of all-male units, and issues of hygiene/privacy. In Navtej Singh Johar, the Court affirmed Naz Foundation’s reading of “legitimate state purpose” that broadened the “object” prong of anti-classification. Finally, commentators (here, here and here) argue that Anuj, Naz, Navtej, and Joseph Shine have moved from an enquiry of “reasonable classification” to one of substantive disadvantage — that is, whether a measure contributes to the subordination of a disadvantaged group. Further, it has been argued that the Court has adopted a standard of “deeper scrutiny” – which is a proportionality-like standard – when reviewing laws that engage or touch on the grounds in, and analogous to, Article 15(1) of the Constitution.

For all of the above, however, a close reading of the Court’s judgment in Babita Puniya exposes significant missteps. First, the Court clothes the right to equality as a “right to rationality” and describes it in anti-classification terms. Instead, the Court should have discarded the anti-classification enquiry for that of substantive disadvantage and deeper scrutiny. To its credit, it did note that in cases involving sex classification, the burden to justify is on the State, and not the challenger.

Second, the analysis must be non-comparative. Often, there is no “like” or comparator, say, in pregnancy claims. Further, the underlying assumption, even in a decision that rejects stereotypical differentiation, is that once characteristics such as race, sex etc. are disregarded, individuals can be treated entirely on their merit. This is problematic. It urges that men and women are relatively alike despite their sex, and hence, should be held to the same standard and given the same treatment. For instance, the Court reasoned that since both female and male SSC officers undergo similar professional courses and training, perform similar duties, and are posted to all field/peace postings, there is no ground for discrimination.

This narrow, anti-classification approach only served the Court well in Babita Puniya because reality demonstrates that women have the ability to perform in the Army equally well as men. Therefore, the Court was easily able to reject the argument that the Army is not a suitable way of life for women. But, it is problematic to rely on a comparator, i.e. male officers, since it provides women officers formal but not substantive equality. The standard is always male, the question, therefore, is: “are you equal to him?” Only once a woman is able to prove that she can do all a male can, is she eligible to receive equal benefits.

This implies that the Court has not viewed women as “affirmatively and self-respectingly a member of a sex, deprived or damaged or contributing as such.” The Court should have rejected the comparative analysis, and recognized the differences between the sexes, and affirmed that these differences must be accommodated, rather than providing a legitimate reason to discriminate. As affirmative action has shown around the world, sameness is not the essence of equality, sometimes formally unequal treatment removes disadvantage. In the military, it may be that formally unequal positive measures, like family-friendly measures, are required to increase the substantive equality of women. In essence, while the holding in Babita Puniya is laudable, the aspirations expressed in the judgment for “equality of opportunity” will only be realized once substantive equality is truly embraced.

The United States

Similarly, in the US, the Trump ban on trans-personnel in the military violates substantive equality. In 2017, President Trump issued a memorandum, reversing the 2016 decision of the Pentagon to repeal the ban on trans-persons openly serving in the US military and to authorize military resources to fund sex reassignment surgeries (SRS). The ban disallows the recruitment of those with a history or requirement of SRS, whether or not diagnosed with gender dysphoria. Multiple lawsuits (Stone, Doe, Karnoski and Stockman v. Trump) challenging the constitutionality of the ban were filed. Several federal courts granted temporary injunctions to halt the implementation of the ban. These injunctions were subsequently reversed by the Supreme Court in January 2019, although the Court did not rule on the merits.

The basis of the ban is the single and narrow trait of being a transgender person who does not wish to suppress their gender identity. The ban displays a discomfort with a military that deviates from basic principles of hegemonic masculinity, which depends upon a gender binary with very identifiable categories of characteristics and behaviors linked to each gender. This identity-based discrimination is thinly veiled by ability-based justifications that rely on untruths, prejudice and stereotypes in a similar vein to those that the Indian Army sought to rely on in defending its policy in Babita Puniya. The US Government’s purported rationale for the ban is that the inclusion of trans-persons hinders “military effectiveness and lethality”, disrupts “unit cohesiveness” and “taxes military resources”. As observed by lower federal courts in both Doe and Stockman, the specious claim of military effectiveness and unit cohesiveness mirrors claims previously wielded to deny access to the military to other minorities, such as African-Americans, women, and homosexuals. In effect, the argument is that trans-persons are not like other recruits, and that this difference justifies the exclusion.

Further, the concern regarding taxation implies that the Government deems it a burden to accommodate differences. This violates substantive equality, which aims to redress systematic and structural discrimination through accommodation. In fact, the opening line of 2019 memorandum explicitly disavows “special accommodations” thus rejecting structural change in an institution that is designed to accommodate only the cis-gender. Sandra Fredman has exposed the problematic logic underlying this uneasiness with the costs of accommodation. Fredman explains that, without legal intervention, the out-group bears the full cost of the lack of accommodation whereas society bears the costs of the specific characteristics of the dominant group. For instance, in the military context, society bears significant but long-accepted costs for services addressing the mental, physical and sexual health of cis-gender enlistees. Instead, costs should fall on those who can bear it, namely, the State. Therefore, it is reasonable to expect the government to bear the costs of accommodating the specific characteristics of a minority, like it does for the dominant group.

Conclusion

Substantive equality is important to structurally change a hyper-masculine site, like the military, especially in the larger context of militarization, particularly prevalent in South Asia (like Kashmir). In a “militarized” society, the “military mindset” — violence, hierarchy, dominance, adherence to socially ascribed gender roles, and the “othering” of nations/communities — permeates civilian life in peacetime. Therefore, the “military mindset” needs to be dismantled to challenge prevailing ideas that oppress minorities. It may not be enough, some argue, to accommodate women and transgender people in the hypermasculine institution of the military. Regardless of accommodation, the core of the military (and its men) is aggressive, hyper-masculinity. This poses a unique challenge to substantive equality, and therefore, in the context of the military, it remains unsettled what true substantive equality would look like.

Arushi Gupta is a student at the Maharashtra National Law University, Mumbai.

Suggested citation: Arushi Gupta, “The Military and Gender Equality: Developments in India and the USA” IACL-IADC Blog (30 June 2020) https://blog-iacl-aidc.org/2020-posts/2020/6/30/the-military-and-gender-equality-developments-in-india-and-the-usa