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.