A federal judge in Texas has declared the all-male military draft to be unconstitutional ruling that 'the time has passed' for a debate on whether women belong in the military.

U.S. District Judge Gray Miller ruled late on Friday that although historical restrictions on women serving in combat 'may have justified past discrimination,' men and women are now equally able to fight.

Restrictions for women in military service were lifted by the Pentagon in 2015.

The ruling could see and end to the Selective Service System which was upheld in the Supreme Court in 1981.

A federal judge has ruled that a men-only draft is unconstitutional, but stopped short of ordering the Selective Service System to register women for military service (file photo)

In the case of Rostker v. Goldberg, the court ruled that the male-only draft was 'fully justified' because women were ineligible for combat roles.

Men who fail to register with the Selective Service System at their 18th birthday can be denied public benefits such as federal employment and student loans. However, Women cannot register for Selective Service.

The case was brought by the National Coalition For Men, a men's rights group, and two men who argued the all-male draft was unfair.

The ruling by Judge Miller comes as an 11-member commission is studying the future of the draft, including whether women should be included or indeed whether there should continue to be draft registration at all.

America hasn’t had a military draft since 1973 but it is men, and not women, who are required to register with the Selective Service (file photo)

The National Commission on Military, National and Public Service released an interim report last month but it not reveal on which side it would come down, however the commission chairman Joe Heck told USA Today, 'I don't think we will remain with the status quo.'

The government had argued that the Texas court should delay its ruling until the commission makes its recommendations, however it is not expected until 2020. Also, because the commission is advisory, there is no guarantee that Congress will act upon it.

The judge denied the government's request for a stay of the ruling. Judge Miller noted Congress has never fully examined the issue of whether men are physically better able to serve than women.

Female Marine Corps recruits take care of many tasks during a brief period of personal time prior to taps at the United States Marine Corps recruit depot in Parris Island, South Carolina

'The average woman could conceivably be better suited physically for some of today's combat positions than the average man, depending on which skills the position required. Combat roles no longer uniformly require sheer size or muscle,' he stated.

Miller ruled that restrictions based on gender 'must substantially serve an important governmental interest today.'

Under current law, women can volunteer to serve in the military, but aren't required to register for the draft. All adult men must register within 30 days of their 18th birthday, and risk losing eligibility for student aid, job training and government jobs if they fail to comply.

Signing up for the draft entails registering with the U.S. Selective Service, an independent agency aimed at ensuring a fair distribution of military duties if the president and Congress had to enact a draft. The U.S. hasn't had a military draft since 1973, during the Vietnam War era.

Friday's ruling came in the form of a declaratory judgment and not an injunction which means the court didn't specifically order the government how to change Selective Service to make it constitutional.

'Yes, to some extent this is symbolic, but it does have some real-world impact,' said Marc Angelucci, the lawyer for the men challenging the draft. 'Either they need to get rid of the draft registration, or they need to require women to do the same thing that men do.'