Constitutional change: how to bring feminist and disability perspectives together

Published: Wednesday, November 08, 2023

Why is constitutional change important? 

I want to start by asking the question: to what extent constitutional change is important? In my view, when we consider our recent history, there have been times when strategic constitutional change has been enacted and that fundamental social change has followed. For example, establishing same sex marriage in the constitution has generated a raft of changes in legislation and policy around, for example, parenthood, children, adoption, social protection and welfare. Similarly repeal brought historical change in the provision of abortion services on this island. But, it is also important to state that there are no guarantees in the arena of constitutional change - as advocates for children’s rights and senate reform know only too well. Political will and public pressure are needed to ensure that constitutional change will be translated into radical legislative and policy reform. Otherwise it just doesn’t happen!

Human rights based perspectives 

Globally, recent constitutional change reflect new value systems in diverse societies - whether in South Africa or in Chile - where human rights-based perspectives have become integral to constitutional law. For example, the Republic of South Africa Constitution defines the new country as one, sovereign, democratic state founded on the values of: a) human dignity, the achievement of equality and the advancement of human rights and freedoms; and b) non-racialism and non-sexism. 

In Ireland, our constitution somewhat less rights-based and more normative, that over 80 years ago set down extremely rigid ideas of Irish society. And we are only now (hopefully) facing into another battle that takes on the heart of this gendered constitution – its perspective on women, the family and equality.

The Irish Constitution states all citizens shall as human persons be held equal before the law. However, this right to equal treatment is immediately qualified by the rest of the clause that says that the State is to have due regard to differences of capacity, physical and moral, and of social function. I won’t even try and make sense of that but what it clearly shouts out to me is that we need change. We need a powerful statement that gender equality and anti-discrimination are underlying principles of a rights-based constitution – a constitution for the present and for the future - making a clear link between discrimination on the grounds of sex and many other forms of discriminations.

We need an end to the highly restrictive definition of the family as based on marriage and recognise the healthy diversity of families that make up Irish society – blended or not blended; one, two or multiple parents; families based on biological, adopting or fostering relationships; extended, intergenerational and globalised families; families that include binary and non-binary parents and children.

What about care?

But what about care? Firstly, we need to recognise that there are severe gendered penalties and wider inequalities of power at the heart of our care systems. These penalties are experienced by (mainly) women in low-paid or unpaid care work and by those in receipt of inadequate care or supports. And it means that carers and support recipients too often live on the edge – on the borders of low income and poverty - with limited access to benefits.

And the world of care is changing - gender, race and class dimensions of care have been intensified as migration has increased - a result of global wars and regional conflicts as well as recurrent financial and environmental crises. It is estimated that half of the world’s 232 million international migrants are women, many of whom find work in care and domestic work in private households and institutions in wealthier countries. Global chains characterise these international care systems that are too often based on displaced families worldwide and vulnerable, precarious mainly ethnic-minority women migrant workers who are frequently denied legal status.

This makes for deepening  geopolitical inequalities that need to be challenged. The care deficit experienced by poorer countries needs to be understood and reversed through social investment programmes financed by wealthier countries. Ireland should support the establishment of a UN international care dividend to low-income countries that would begin to address the real cost of the loss of care resources in countries of origin.[1] This could be similar to the way debt burdens were at least partially addressed and the establishing of international-funded peace dividends.

At a global level, new far-sighted discussions and policies on care & supports systems are taking place. From a human rights perspective, the right to care is understood as multi-dimensional: the right to provide care, to receive care; and to care for oneself. This approach is based on key principles of economic justice & gender equality.

The right to care emerged as a key policy issue at the Regional Conference on Women in Latin America and the Caribbean in 2013. Some countries and regions have now recognised care and its contribution to the economy in their constitutions.^[2] For example, the Constitution of Ecuador (2008) mandates the State to establish public policies and programmes for the care of older adults, persons with disabilities and children. It also recognises unpaid household work and human care as productive work and it declares that the State will encourage the greatest possible degree of personal autonomy and participation in the definition and implementation of these policies.^[3] In 2022, at the United Nations General Assembly,^[4] the UNCHR, argued the necessity for a paradigm shift, from seeing care receivers as ‘dependents’ to recognising them as rights-holders with a right to access quality support necessary for a life with dignity and autonomy.^[5]

Power relations around disability 

Such a shift involves complex power relations around disability. Disabled people have been systematically denied autonomy and have experienced enforced dependency in historical care systems - both in Ireland and globally. Indeed, in the light of the history of disabled as well as of mental health communities, the very notion of care, especially institutionalised care, carries stories of segregation, abuse and humiliation. And women with disabilities are often on the outer margins of those care systems.

Our personal experiences of being denied opportunities are not explained by our bodily differences but by the disabling social, environmental and attitudinal barriers which are a daily part of our lives. This social model of disability has given us the language to describe our experiences of discrimination and prejudice and may be seen as liberating for disabled people in a similar way that feminism has been for women….i.e. gender has been seen as a social construct and now disability is also seen as a social construct.

As Margaret Lloyd[6] and Jenny Morris[7] have argued since the 1990s that like women - disabled people’s politicisation - has its roots in the assertion that the personal is political. They make a case for moving from the feminist perspective of the personal is political to a combined feminist and disability perspective of the personal AND the private is political……. and they are referring specifically to the private domain of care and domestic labour.

Rosemary Garland-Thompson has argued strongly that disability studies highlights the significance of interactions between bodies and their social and material environments and has coined the term embodied identity. In her view, including disability in a framework of analysis, provides fresh ways of thinking about the complexity of inequalities, as she states:

Feminist disability studies shows that disability - similar to race and gender - is a system of representation that marks bodies as subordinate, rather than an essential property of bodies that supposedly have something wrong with them.[8]

We are all inter-dependent

Feminist disability studies questions the dominant premise that casts disability as a bodily problem to be addressed by normalisation procedures. Being the object of care may then be seen as undermining the very concept of individual independence. But, the reality is that we are all inter-dependent – that it is at the heart of family, community and human society. And some of us need more care or supports than others and at different times in our lives. But no one of us goes through life without periods of dependency and as a society, we are founded on inter-dependence.

Currently, the ideology of the neo-liberal capitalist system has imbued individualism with the highest status - which we are all supposedly striving towards. Dependence is highlighted and frequently vilified, seen as a failure of the individual or the household – a drain on economic resources - that then have to be supported by the State. A positive concept of interdependence and dependence is simply outside the narrative - social solidarity and community needs are designated as weakness.

This raises question marks as to how we place care into the Irish Constitution and provides an opportunity for a radical rethink. We need to address both the economic inequalities that women face as primary carers and the power inequalities experienced by recipients of our inadequate care and support systems. Structural inequalities characterise both.[9]  

Feminist disability studies helps us to understand in more complex ways how human variations carry social meanings that justify discriminatory practices - shaping the lives of both disabled and nondisabled women. Care can be seen as a paradox operating at different levels: the most intimate levels, and also at the level of national legislation and policies and yet at a further level in shaping global injustice and inequalities.

Recognising systems of both care and support 

We need constitutional change, together with laws and policies, that explicitly recognise systems of both care and support. And a State that takes public responsibility for care and for social investment in support systems. Fundamentally, this would mean greater economic equality and increased gender justice; for both carers and those receiving care; as well as independence and autonomy for those accessing supports.[10] FREDA principles are an example of an internationally recognised human rights framework on care, adopted by HIQA in 2019: fairness, respect, equality, dignity and autonomy - five principles that are defined as interdependent and often overlapping.[11] I haven’t been able to find any evidence of their implementation.[12] 

Christine Kelly links conversations between feminist and disability perspectives on care, and develops a new theoretical framework based on concept of accessible care. Accessible care moves beyond understanding "accessibility" as merely concrete solutions to issues in the physical environment.[13] Accessible care draws on feminist disability perspectives and a feminist political ethic of care - engages with a disability perspective on autonomy and support, without abandoning the feminist perspective on gendered inequalities in care.[14]

Ethics of care 

In the discussions which we will have around the referendum and beyond, it is crucial that the experiences and needs of different sectors of women - those needing care and those accessing support, as well as those providing care and support - are at the fore. Care and support systems are critical political issues, not just for demographic and social reasons, but also for global sustainability and social justice. And there is increasing evidence that investment in the labour-intensive care and support sectors creates more sustainable economic futures and social well-being. I will give Hughes and co-writers the final word:

We make a plea to disability activists and feminists to make common cause in the struggle for an ethics of care that is founded upon embodied interdependence.[15]