Constitution is sexist, exclusive and reductionist

Published: Thursday, September 20, 2012

This article was first published in The Irish Examiner, Friday, September 21, 2012

By Orla O'Connor

A new Constitution should embody our society's values and equality in particular, and women have most to gain, writes Orla O'Connor

IN 1936, while formulating a new constitution, Éamon de Valera established a civil service committee to assist him. They were all men. He also took extensive advice from the president of the Supreme Court, and the High Court. Both were men. Archbishop of Dublin John Charles McQuaid also heavily influenced the final text. There were only three women TDs at the time, none of them said a word in the Dáil debates on the draft.

Dev shrugged off petitions from numerous women's associations. They requested that women be allowed to serve on juries and be given decision-making roles in state bodies. Women also argued for the maintenance of Article 3 of the 1922 Constitution, which guaranteed "discrimination without distinction of sex". Instead, Dev cast his long shadow over the women of Ireland for generations to come. He designed a Constitution that was sexist, exclusive, and reductionist. It gave legal and moral force to his dreams of a Catholic Ireland where women stayed at home and served their men.

A Constitution embodies the highest aspirations of the citizens. It gives both legal and moral weight to the values we hold deepest in our society. Whether conscious of it or not, each day we operate under the framework of Bunreacht na hÉireann. It shapes almost every aspect of our lives. The decision of the Government to hold a constitutional convention -- though limited in ambition and design -- is nonetheless welcome.

Perhaps more than any other sector of Irish society it is women, almost 51% of the population, who have the most to gain from reform of the Constitution.

The constitutional convention has the power to look at eight issues. Of particular interest to women will be the sessions examining the role of women in the home, the role of women in politics, and marriage equality.

The clause designating women's role as in the home has been interpreted in a variety of ways. Most surprising is Chief Justice Susan Denham, who argued that "Article 41.2 recognises the significant role played by wives and mothers in the home [...] it does not exclude women and mothers from other roles [...] The work is recognised because it has immense benefit for society". This generous interpretation has been viewed differently by many legal scholars. They suggest that article 41.2 does assign women a specific role in the home. It also ignores the possibility that men could have any responsibility for being fathers or carers. Dev and his drafters not only had a narrow view of women but also a narrow view of men.

A new clause must place real value on the work done, still mostly by women, in the home every day. Women care for children, elderly parents, relations and friends. However, a new clause must also invite men to take on their responsibilities as caring citizens so freeing up women's time to play an active role in all aspects of our society.

Women in Ireland have been systemically excluded from politics and top decision-making posts in Ireland. Thankfully, the government is seeking to address one part of the problem with quotas legislation. But women still face many other barriers. After all, who has time to run the country when the crèche is just about to close? Using the Constitution to encourage men to take on their responsibilities is one aspect of the tasks ahead.

However, a second part of the jigsaw is to use the Constitution to recognise the role that civil society and associational life play in creating a flourishing democracy. Women are running thousands of civil society organisations nationwide. Their expertise, time, and impact rarely register at the government level, except to be viewed as irritants and dissenters. By recognising and empowering civil society we can encourage more citizens -- women and men -- to participate in our democracy.

WHILE full participation in democracy is essential, it is only possible in a society which gives its citizens equal access to all rights. The existing discrimination against same-sex couples means that two women who want to get married cannot legally do so. We all know of the hardship this has caused for families: Denied access to family members in hospital; denied the right to reside in the same country as the person they love. The Civil Partnership Bill set out to introduce some changes but left 169 points of legal discrimination between same-sex couples and straight couples. Are LGBTQ people worth only 80% of the rights and dignity of straight people? Modern Ireland surely knows better. The constitutional convention offers the best opportunity in a generation to reach equality in this area.

Representative bodies, like the National Women's Council of Ireland, will be asking for the discussion of issues such as economic, social and cultural rights. Successive governments have argued that these rights are "too expensive" to bestow on citizens. But nobody questions the cost of long jury trials or the printing ballot papers. Some rights have costs, all rights have benefits.

Nobody is suggesting that we guarantee the right to a four-bed semi-D with a 4x4 parked outside. But the idea that the poorest and most vulnerable in our society should have a constitutionally guaranteed minimum standard of living is nothing less than we all deserve. How different might our health service be today if our health and wellbeing were constitutional rights? They would be owed to us as citizens not simply granted to us by politicians.

Our Constitution needs reform. It needs to promote and protect our rights. It must shape new common values to create a society in which all women can feel included. It has been a long time coming, but now we can hope that a change is going to come.