By Wendy Murphy, J. D., Impact Litigator
Last week we received a ruling in our lawsuit (Equal Means Equal v. Donald Trump) to establish women’s full legal equality by challenging the constitutionality of the Selective Service Act, which forbids women to register for the military draft. It is a very rare example of a law that explicitly treats women and men differently. Most instances where women suffer unequal treatment are in the enforcement of laws, and in the actions and inactions of government officials.
As expected, the judge ruled that we do have standing because the primary plaintiff is a woman who tried to register for the draft, but was rejected solely because of her sex.
Because women have standing, the court had to address the merits. This is vitally important because courts routinely deny women standing as a way of avoiding having to address the issue of women’s inequality. This keeps the problem of women’s inequality invisible, which obviously contributes to the problem of activism. Simply put, most women aren’t even aware that the Constitution has established them as unequal second-class citizens. This helps to maintain women’s subjugation because women will not fight for equality if they don’t know they don’t have it. They will, instead, suffer horrendous injustices, and feel hopeless and upset, but never come to understand that the primary cause of their suffering is the Constitution.
Because standing is so important, we are happy to have prevailed on the standing issue, especially considering that the government spent most of its brief arguing that we lacked standing.
As for the merits, the court ruled that it cannot address the question of whether the Selective Service Act is unconstitutional because the Supreme Court has already ruled – in 1981 – that it is, and only the Supreme Court can reverse itself. This ruling is inconsistent with what a different judge ruled on the exact same issue a few years ago in New Jersey where the court said that the Supreme Court’s decision is not binding precedent because the conditions under which that ruling was decided have changed.
The court also ruled that the ERA is not valid because the deadline expired long before the last state ratified. Again, we were not surprised by this, and to some extent we wanted this to be the ruling because it enables us to appeal.
An appeal is appealing (pardon the pun) because it is an opportunity yet again to show the federal courts that many people support our view that the ERA is valid, and while courts have yet to agree, we will not stop fighting until the Supreme Court decides the issue.
We do intend to appeal, which means the First Circuit Court of Appeals will soon decide the issue.
We will have an amicus brief and welcome all the help we can get.
Meanwhile, we will also be filing similar cases in other jurisdictions. It is important that we file more cases soon because in December 2026, women will no longer be able to achieve standing on the Selective Service Act challenges. This is because Congress quietly inserted into the 2026 National Defense Authorization Act in December 2025, changing the registration process so that men will be registered automatically for the draft when they turn 18. For now, they must fill out a form, but in December the government will do that for them. This will deprive women of standing because they can no longer suffer the “legal injury” of being rejected by the government, and it is not enough of an “injury” to say the law itself harms women by excluding them.
This law change was done solely because of our case, so it’s a good sign that they are paying attention and so worried about women filing lawsuits that they bothered to burden Congress with the task of making the draft registration process automatic even though we haven’t had a draft since 1973 and won’t likely have another one anytime soon.
We take such small victories very seriously –
Sometimes victories don’t look like victories, but in high stakes litigation, anything that teaches us something or helps educate the public is important.
See also Wendy’s article in the Boston Globe: Unequal Draft, Unequal Rights