A lawsuit that argues it is discriminatory to require men, and not women, to register for the military draft has been given new life.

The 9th U.S. Circuit Court of Appeals ruled Friday that a lower court was wrong in dismissing the lawsuit, saying the issue of women’s roles in the military is “ripe for adjudication” in the courts, especially now that the Department of Defense has announced its intention to open all combat positions to women.

The lawsuit was filed in 2013 in Los Angeles federal court by the National Coalition for Men, a San Diego-based men’s rights organization, and James Lesmeister, an 18-year-old Houston man of draft age.

The suit argued that the Selective Service System discriminates between the sexes, and the solution is to either get rid of the draft altogether or to include women.


“We believe a lot of it comes down to male disposability, and the draft is just one of those areas where the law treats men as disposable,” said Marc Angelucci, the coalition’s vice president and a lawyer who is handling the case pro bono.

“We don’t take a position on whether or not women should be in combat or to what extent. We also don’t believe the draft has to be about combat. Our role in the organization is challenging sex discrimination.”

Lawyers for the Selective Service asked a lower court to dismiss the suit, contending that it was premature for the courts to decide the issue of women in the draft because it was still unclear which traditionally male-only military roles might be opened to women. The whole case hinged on contingencies that may or may not occur, the government said.

The agency cited a 1980 case in which men had sued on similar grounds, in which the U.S. Supreme Court ruled that the draft was not discriminatory because women weren’t allowed in combat.


The service also argued the men’s rights group and Lesmeister had no legal standing to file the lawsuit, because men would still be required to register for the draft, whether women are or not.

The district court agreed, and dismissed the lawsuit.

The men’s coalition appealed the decision, and both sides argued in front of a three-judge panel of the 9th Circuit on Dec. 8.

The timing of that hearing can’t be ignored.


Just five days before, Defense Secretary Ash Carter made the historic announcement that women would be allowed to serve in all areas of the military, including infantry and special operations.

In its ruling, the 9th Circuit said much of the uncertainty over women’s roles in the military has now passed, and that it is now valid for the courts to take up the issue.

The panel also ruled that the men’s coalition and Lesmeister do have legal standing to bring the case, and that any alleged discrimination could be remedied by either eliminating the draft or requiring women to register.

The judges sent the case back to the district court in Los Angeles to continue, noting that there may be other issues that might disqualify the men’s group that may need to be addressed.


The Selective Service has the opportunity to ask the 9th Circuit to reconsider, and further chances to appeal beyond that. A Department of Justice spokeswoman in Washington, D.C., said Friday the office is reviewing the opinion and had nothing else to say.

The timeliness of the issue could also mean that Congress will sort it out long before this case is resolved in court. Women in the draft has become one of the hot-button topics on the presidential campaign trail, and the defense secretary said in a San Diego address earlier this month that Congress should consider the possibility.

Carter said in his talk at Marine Corps Air Station Miramar that he expanded the types of jobs women can hold in the military because a larger talent pool makes the armed forces stronger. He suggested that the issue of Selective Service registration offers a similar dynamic, but stopped short of saying he thinks women should be required to register.

A day earlier, Gen. Mark Milley, the Army’s chief of staff, and Marine Corps Commandant Gen. Robert Neller told members of the Senate Armed Services Committee that they believe all physically abled Americans should be required to register for the Selective Service.


Rep. Duncan Hunter, R-Alpine, a Marine veteran and staunch critic of allowing women into combat, has announced his plans to introduce legislation that would require equality among the sexes in the draft — almost as a challenge.

Men aged 18-25 are required to register for the Selective Service, giving the military a huge pool of potential service members should Congress feel the need to authorize a draft in times of crisis. A lottery based on birthdays would then determine who gets picked.

The U.S. had a draft during the Civil War, World War I, World War II and the Cold War, including in the Korea and Vietnam conflicts. Draftees have supplemented the volunteer Army between 1948 and 1973.

The Selective Service considered allowing women to register for the draft during World War II, when there was a shortage of military nurses, but that step ultimately wasn’t needed due to a surge of volunteerism, according to the service.