Women in Extended Roles in the Military: Legal Issues

Abstract

The cases of Tanja Kreil v. Germany and Angela Maria Sirdar v. The British Army Board recently negotiated at the European Court of Justice are instructive not only regarding the arguments put forward by all sides, but also because of a fundamental question of constitutional law involved, namely whether national or Community law governed the extension of military roles in European armed forces. The issue then assumes an international or, more precisely, a European dimension. Both women complained about workplace discrimination in the military based on their sex. The Court accepted Tanja Kreil's charge and ruled that national provisions did not override Community law. Accordingly, Germany was called to give women access to further classifications and trades within the Bundeswehr, and, in the end, the Ministry of Defence decided to open the military to women without any restrictions, meaning that they would be able to enter every classification and trade they wanted to. The Sirdar case is different because, here, it was not the generic issue of female recruitment, but the specific question of their exclusion from certain specialties, in particular from special forces, that was at stake. In the end, the Court followed the argument detailed by the British Royal Marines and confirmed the legality of Sirdar's exclusion. The two cases lead the author to develop a very useful scheme of categories of military roles for research purposes in which he distinguishes and defines six categories: non-combatant, combat service, combat support, combat, direct ground combat and special forces. Western armed forces currently recruit women in the first four categories, some do so with regard to direct ground combat, but none allows women to serve in special forces.