Constitutional protection for women in the home ‘out of date’

The constitutional protection given to “women in the home” should be amended as it is “out of date”, according to senior Department of Justice officials.

Amending or repealing the controversial article 41.2 of the Constitution would require a referendum. In briefing notes to Minister for Justice Frances Fitzgerald, department officials warn that such a move would be controversial.

Article 41.2 dates back to 1937 and says 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 continues: “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.”

Change has long been demanded by women’s groups and by a number of international bodies, including most recently the United Nations Human Rights Council in May. Others, including carers, value the recognition it affords to those who do care-work in the home. It is considered particularly important given the general undervaluing of the work done in the home.

Women’s rights

Members of the UN council variously recommended repealing the article altogether or amending it to make it gender-neutral.

Germany

recommended it be reviewed to “strengthen women’s rights” and to “abandon formulations that potentially promote gender discrimination”.

The constitutional convention recommended in 2014 that the article be “made gender-neutral to include other carers both ‘in the home’ and ‘beyond the home’ ” and include wording to guarantee the State endeavours to provide “a reasonable level of support” to carers.

The convention was established by the last government to consider aspects of the Constitution that may need change,

A Department of Justice taskforce was set up to consider the recommendation and comprises senior staff from the equality and civil law divisions. Its report remains unpublished but is cited in the ministerial briefing document.

It says: "The task force favoured amendment of the Article which is out of date . . . However it recommended that support of carers should be 'as determined by law' in order to ensure the Government and the Oireachtas remain responsible for decisions on the allocation of public funds and . . . public policy regarding carers more generally."

Social policy

It recommends support for carers be dealt with in article 45 of the Constitution “which contains directive principles on social policy and is not recognisable by the courts”.

The convention also recommended the Constitution be amended “to include an explicit provision on gender equality”. The taskforce says the department should “pursue this issue” but in consultation with the Attorney General.