Crime & Law

Why is the ‘women’s place’ referendum so controversial?

A vote on removing the Article seemed like a sure thing, but it has already been derailed

The Constitution of Ireland – Bunreacht na hÉireann. Photograph: Alan Betson

Sarah Bardon
Sat Jul 14 2018 - 01:47

In the words of its critics, and there have been many down through the decades, article 41.2 of the Constitution – the so-called “women’s place is in the home” clause – is “archaic”, “sexist”, “offensive”, “patriarchal” and “misogynistic”.

The article in Bunreacht na hÉireann reads: “In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.”

It goes on: “The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.”

When it was created, article 41.2 was a reflection of the State's attitude towards women in 1930s Catholic Ireland, illustrating the then widely-held belief that a woman's value was confined to the home and that it was the State's duty to ensure her duties there were not neglected.

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It is clear that article 41.2 reflects an Irish society that no longer exists, one that is confined to the history books – and the Constitution. However, there are differing views about whether it should be deleted or amended to acknowledge the importance of care within the home.

The differences came to a head this week when the Dáil’s business committee put a halt to the Government’s plans for an October referendum.

So, how did a referendum with no publicly-declared opponents get derailed in such spectacular fashion?

The first signs of trouble emerged at a Cabinet meeting three weeks ago. Minister for Justice Charlie Flanagan sought approval to hold a referendum to delete the article, rather than amending it. Amending the Constitution may result in unforeseen consequences and clumsy outcomes, he explained.

Few doubted the legal advice he outlined, but Minister for Children Katherine Zappone urged Mr Flanagan to speak to the women's caucus within the Oireachtas before proceeding. Her plea was supported by Minister for Social Protection Regina Doherty.

Mr Flanagan met with the caucus and the following week returned to Cabinet with the same proposal but this time, he secured Government approval for the referendum.

Chair of the women’s caucus and Green Party TD Catherine Martin explains: “We had an initial meeting with the Minister and then we scheduled a meeting of the caucus to discuss the referendum. But the referendum was announced.

“There was agreement by the caucus that article 41.2, as it currently stands, should go but there were varying views as to whether it should be amended or deleted. For me, there is a feeling this is all being rushed and the necessary conversations are not happening.”

Current wording

There is a general consensus that the current wording cannot be maintained. In 2013 the Constitutional Convention recommended amending article 41.2 to make it gender-neutral, recognising the importance of care work and providing for a reasonable level of State support for carers.

A task force established within the Department of Justice recommended two alternatives. One option was to make the wording gender-neutral to recognise care work in the home and to provide that the State would endeavour to ensure support for carers in the home.

The second approach was to give a purely symbolic recognition to home and family life and to include carers generally in article 45.

The Government has not ruled out making such changes to the Constitution but believes the matter should be considered by a Citizens’ Assembly.

Labour Senator Ged Nash agrees: "Article 41.2 has no place in the Constitution. It is sexist and offensive and it should be removed.

“A conversation recognising the value of carers absolutely should take place, it is a long overdue one but we should not have to wait to remove this offensive clause.”

Senator Alice Mary Higgins has a differing view: "I strongly believe the current wording needs to go. But if the Government is going against the advice of its own internal taskforce and the Constitutional Convention, it needs to be clear on the logic for that decision.

“The decision to delete came as a surprise to us all. There needs to be a discussion on the differences, and the Government needs to tease out the rationale for its decision.”

This is a view shared by the Sinn Féin leader Mary Lou McDonald and Solidarity TD, Ruth Coppinger.

If the Government proceeds with its plans to delete article 41.2, neither Ms Higgins nor Ms Martin will argue against it in a referendum campaign.

However, without the unwavering support of key political figures, there is a fear this referendum would meet the same fate as the referendum on Oireachtas inquiries. In 2013, voters were asked if the Oireachtas committees should have the power to hold people to account. The government took its eye off the ball and the referendum was defeated thanks to the interjection of a number of key figures in the final days of the campaign.

One Cabinet figure told The Irish Times: “It is kind of a relief that this unwieldy conversation is happening now and not in the midst of a referendum campaign. We need this out of the Constitution but we cannot do it unless we have everyone on board.

“The problem was the lack of consultation. Had this been trashed out before the memo was brought to Cabinet, we may not be in the position we are in now.”

The Government’s motives in pursuing deletion have been called into question. Amending the Constitution to recognise care work may carry financial risks for the State.

If the Constitution acknowledges the work of care within the home, there could be cost implications in terms of adequate financial assistance for carers.

The Government is keen to brush those arguments off but there is no doubt they are playing a role in its thinking.

The road to a referendum is never paved with perfection but this one appeared destined for an easier journey than most.

However, it is now struggling to get past the first hurdle.

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