The Supreme Court will not be hearing a challenge to the law that requires people assigned male at birth to register for the draft but not people assigned female at birth.
A lawsuit from a “men’s rights” organization was trying to overturn the law, saying that it amounts to sex-based discrimination. But the Supreme Court is going to let the law stand, for now.
While the Court did not explain why they will not hear the case, Supreme Court Justice Sonia Sotomayor said in a statement that the decision is a result of “the Court’s longstanding deference to Congress on matters of national defense and military affairs.”
“It remains to be seen, of course, whether Congress will end gender-based registration under the Military Selective Service Act,” she wrote in the statement, which was signed by Justices Stephen Breyer and Brett Kavanaugh as well.
In the lawsuit, the National Coalition for Men (NCFM) is arguing that the Military Selective Service Act (MSSA) amounts to illegal sexist discrimination. The law requires all people assigned male at birth (AMAB) – even non-citizens and people who can’t serve in the military due to medical or other reasons – between the ages of 18 and 25 to register for the draft.
The AMAB-only draft was challenged and upheld by the Supreme Court in its 1981 Rostker v. Goldberg decision, where it said that the ban on women in combat positions meant that women would not be needed in the case of a draft.
But the ban on women in combat was lifted during the Obama administration. The ACLU, which represented the NCFM, called the draft “one of the last sex-based classifications in federal law.”
“It imposes selective burdens on men, reinforces the notion that women are not full and equal citizens, and perpetuates stereotypes about men’s and women’s capabilities,” said ACLU lawyer Ria Tabacco Mar, who represented NCFM.
All people assigned male at birth – trans women, cis men, and AMAB non-binary people – must register for the draft within 30 days of their eighteenth birthday, according to the National Center for Transgender Equality (NCTE). Failure to register can be punished with prison and fines, although prosecution is rare.
The real consequences are that many government benefits – like financial aid for college, citizenship, and future government employment – are tied to registering for Selective Service.
Trans men, cis women, and AFAB non-binary people cannot register for the draft. For trans men, this can create problems when applying for federal benefits like financial aid because they have to get a letter from the Selective Service System explaining that they are exempt and effectively outing them as trans.
Some Congressional Democrats have pushed for a law to change, without success. In 2017, Rep. Jackie Speier (D-CA) tried to include a provision in a larger military spending bill to require everyone to register for the draft.
“If it does come to a draft, men and women should be treated equally,” Speier said at the time.