The New York Times reported recently that Lisa Pagan, a member of the U.S. Army Individual Ready Reserves, brought her two small children (ages 3 and 4) with her when she
had been reactivated for service and reported for duty at Ft. Benning,
GA, hoping to dramatize her request for an exemption from service on
the grounds of family hardship.  Pagan, who had done one tour of duty
in Iraq as a truck driver, had been recalled to active duty but claimed
that she should be exempted from serving because there was no one to
care for her children.  Seems that her husband, Travis, had to travel a
great deal for his job in sales, and could not be depended upon to
provide child-care for their children.   The Army’s regulations provide
that in the case of extreme personal
hardship, amounting to “an adverse impact on a Reservist’s dependents
resulting from his or her mobilization,” the Reservist may be
transferred to another division of the Reserves or discharged. 32 CFR §44.4(f)

Pagan’s plea for exemption was granted this week when she was
honorably discharged from the Army.  (The Individual Ready Reserves
(IRR) is comprised of former full-time soldiers who still have time
remaining on their military commitments. When Army hopefuls sign their
enlistment contracts, they are agreeing to an eight-year stint in the
service. After four years or so, soldiers who do not wish to become
lifers are given discharges and return to the civilian world. But
they’re still on the hook as IRR reservists and are supposed to keep
the Army apprised of their whereabouts.  Slate has a helpful story about how the IRR functions.)

Pagan’s case raises some difficult questions for those of us
concerned with gender-based justice.  On the one hand, the Army, just
like any other employer, needs to be sensitive to the dependency needs
of the people it employs.  In some respects, the military has taken a
lead in addressing the childcare needs of it’s employees.  Several
years ago the National Women’s Law Center
applauded the model the military set when it came to childcare.  Yet
there have also been countless stories in the news of men and women who
have been called up to service who are unable to provide adequate care
for their children while they are deployed abroad.  A year and a half
ago,  Senators Charles Schumer and Representative Carolyn Maloney
issues a report entitled: Helping Military Moms Balance Family and Longer Deployments.  Among other things, the report noted that:

• Women make up approximately 14.3 % of the active duty military (one in seven)
• 38% of the women in the active duty forces are mothers
• 44% of the men in the active duty forces are fathers
• Approximately 11 percent of women in the military are single mothers compared to 4 percent of single fathers
• 93 percent of military spouses are women

On the other hand, when I read the Times story I thought: what about
the children’s father?  Can’t he take care of the kids?  If their
positions had been reversed, and the IRR member called up for active
duty had been a man, do you think the military would have allowed him
to plead “family hardship” if his wife was unwilling to quit her job to
take care of the kids?  Why isn’t the father in the picture in any
meaningful way as having a responsibility for taking care of the kids? 
His job seems to come first.  For her, childcare comes first.

In fact, the question about why the father isn’t in the picture was
made quite clear when you compare the picture (above) that ran with the
story in the New York Times, the Houston Chronicle and many other
papers with the picture below that ran in the Boston Globe and USA
Today:

Even though Dad is included in this picture, it’s interesting that
he’s just sort of sitting over there by himself, while the kids are
clearly attached to their mother.

I concur with commentators such at Rebekah Sanderlin who writes a blog
about family life in the military that this is a hard case, but I don’t
think we can adequately assess the legitimacy of Pagan’s plea for
exemption from service when men continue to be exempted from service at
home.

This post was first published on the Gender & Sexuality Law Blog at Columbia Law School.