A referendum to replace the article of the Constitution that refers to women’s “duties in the home” may now not go ahead this year over fears it could be divisive, The Irish Times reported recently. The Government had promised to hold the referendum in November, with wording which was due to be finalised in the coming weeks. However, there are concerns among some that the campaign could lead to contentious debate about the definition of a family and over gender issues.
Ivana Bacik: Yes, it must go ahead. Finding the right wording is not rocket science
Article 41 of the Irish Constitution is long overdue for amendment. It states that “by her life within the home, woman gives to the State a support without which the common good cannot be achieved”. It refers to mothers as having “duties in the home”. Fathers and carers are not mentioned. Only those families based on marriage are offered protection.
Even in 1937 when the Constitution was adopted, this language was criticised for its blatant sexism. Women’s groups protested then outside Leinster House at the way in which the text confined their role to lives within the home. This text, adopted at a time when a “marriage bar” required women to resign from workplaces upon marriage, offered a constitutional underpinning to such laws and policies. Indeed, the outrageous restriction on women’s freedom to work continued in place until 1973. Over the decades since then, women have increasingly taken up prominent leadership roles in public life. Although the Dáil is still far too male-dominated (77 per cent of TDs are men), women and mothers have been elected president, run successful businesses, fly commercial planes, preside over superior courts and compete at top levels in international sports. Yet within our fundamental legal text, women and mothers remain embedded exclusively within the domestic sphere, as if the marriage bar was still in place.
This must change. The language of Article 41 is based on outdated gender stereotypes with no place in a contemporary constitutional text. Nor does Article 41 recognise the various forms of care, both inside and outside the home, both paid and unpaid, carried out by both men and women, so vital to Irish society. Further, the Article’s definition of family has long been criticised for limiting protection to the marital family only – a highly restrictive definition which does real injustice to the wonderful, diverse reality of family life.
The need to delete the sexist language, recognise the value of care and create a more inclusive definition of family is now widely recognised. International agencies have called for these three changes; numerous reports and expert opinions have been commissioned by successive governments on how to do this. But while developing the appropriate wording for any constitutional change is always complex, it is not rocket science. There is no need for further delay; much work has already been done in preparation.
It looks likely that the Government is going to fail in honouring its commitment to hold a vote on these long-overdue changes. This failure really matters. It matters to women denied workplace equality, to carers whose immense contribution remains desperately undervalued
In 2021, the Citizens’ Assembly on Gender Equality recommended a clear framework for constitutional amendment. In 2022, I was honoured to chair the Oireachtas Committee on Gender Equality which examined the assembly’s recommendations and devised a blueprint to implement them. In our Unfinished Democracy report, published in December 2022, we even provided the Government with a precise form of wording for replacement constitutional text to give effect to the three changes recommended – wording which had unanimous cross-party support. We called on the Government to move swiftly to call the necessary referendum, which we recommended should take place before the end of 2023.
In response, the Taoiseach gave a commitment in March 2023, on International Women’s Day, that the referendum would proceed this November. He said that an interdepartmental group was working on a revised Government wording, to be published in May. When no wording had appeared in July, I pressed him again on this and was assured that the referendum would indeed happen in November. However, we are now in early September, with no sign of any further action. It looks likely that the Government is going to fail in honouring its commitment to hold a vote on these long-overdue changes.
This failure really matters. It matters to women denied workplace equality, to carers whose immense contribution remains desperately undervalued. And it matters to families denied State recognition; families such as that of father of three John O’Meara, denied widower’s pension upon the sad death of his long-term partner Michelle Batey, because they were not married. His case, currently before the Supreme Court, demonstrates the practical impact of a cruelly restrictive and anachronistic text that urgently requires amendment.
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Undoubtedly, the wording must be legally robust and the Electoral Commission must have enough time to ensure public debate is properly informed before the referendum. But much groundwork has been done already and there is still time to run a strong, evidence-based information campaign to allay any ungrounded fears about adverse implications for vulnerable communities.
A confident and competent government would not have engaged in the extraordinary foot-dragging and prevarication that we have seen on this over recent months. It’s time to name the date, call the vote and make the change.
Ivana Back is chairperson of the Oireachtas Special Committee on Gender Equality
Eilis Barry: No, it should be delayed. Rushing ahead in November could be a lost opportunity
Taking the time needed to get the wording right should transform the proposed referendums on gender equality, care and the family from a symbolic moment into a historic paradigm shift, and not just for the rights of women, carers, families. It is a once-in-a-lifetime opportunity to recreate our depleted and weak constitutional guarantee of equality into a bedrock of protection for disadvantaged and minority groups and individuals. Achieving this requires going beyond symbolic “recognition” of particular groups and developing wordings which create meaningful, effective and potentially transformative constitutional rights.
It is vital that there is clarity about the intended purpose and effects of any proposed amendments. And voters must have a chance to be informed about what exactly the amendments are trying to achieve, for women, carers, non-marital families and others in terms of law, policy and rights, and how those outcomes will be achieved through the wordings put to the people.
There are lessons to be learned from the watered-down children’s rights amendment put to referendum in 2015 which barely inspired people to go to the polls and passed by an unexpectedly narrow margin. Worse, it is now clear that the change it offered in terms of children’s rights is minimal – symbolic perhaps, but largely ineffective.
Rushing ahead could create an information vacuum about the purpose and effect of the proposed amendments – which is likely to be filled by attacks on the rights of some of the most marginalised groups in Irish society, such as the transgender community
Holding the polls in November may unnecessarily risk rushed compromises in terms of wordings and the opportunity for effective constitutional change may be lost. It may also create an information vacuum about the purpose and effect of the proposed amendments – which is likely to be filled by attacks on the rights of some of the most marginalised groups in Irish society, such as the transgender community.
We need to take the time necessary to answer the questions about how we can ensure that each of the proposed amendments makes a true difference in terms of people’s lives and rights. The reality is that the Constitution’s “women in the home” provision has been wholly ineffective in requiring the State to provide meaningful support to women (or anyone) with caring responsibilities. We need to do more than replace it with a gender-neutral provision in relation to “care” to ensure meaningful changes to the rights and lives of carers, and to tackle the disproportionate burden placed on women in terms of caring.
We should also include the rights of people with disabilities and older people (who currently enjoy no specific constitutional protections) in a way which promotes independent living and which reverses rather than endorses the damaging negative stereotypes of those groups as “subjects of care” rather than autonomous individuals and rights holders.
We must also ensure that the Citizens’ Assembly recommendation to add a reference to gender equality to Article 40.1 of the Constitution does not create a hierarchy of grounds in constitutional equality law. By adding just one protected ground, do we risk reducing the already limited constitutional protection against discrimination enjoyed by groups such as Travellers and people with disabilities? What, if any, actual additional rights will be achieved for women by such an addition?
If we are amending Article 40.1, we should address the real issues with the Constitution’s so-called “equality guarantee” – the interpretation of which is so weak that the Supreme Court has frequently decided that it is inferior to other constitutional rights and has set an almost impossibly high threshold for establishing discrimination. Property rights have taken precedence over disability rights and, remarkably, in the 21st century, a men-only golf club was able to rely on its right to freedom of association in successfully defending a gender discrimination case. Adding a gender ground alone will not be enough to reinvigorate the lame duck equality guarantee.
Finally, simply removing the constitutional provision which bars non-marital families from enjoying constitutional protection, while welcome, may be insufficient to prohibit discrimination against them in tax and social welfare policy.
A relatively short delay until a defined date in spring could be the key to answering these important questions, allowing an inclusive process for engagement with civil society, academics and representative groups who are ready to engage with the Government, and to ensure the most effective wordings. It will also allow a comprehensive information campaign to be prepared. The time needed to develop the wording could also be used to ensure that a housing rights referendum proceeds in tandem with the others. There is no need to settle for symbolism. Let’s seize the opportunity and take the time to effect real change.
Eilis Barry is chief executive of FLAC (Free Legal Advice Centres)