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Laura Cahillane: The ‘women in the home’ provision is hardly suitable for a modern Constitution

Published: Thursday, February 22, 2024

Dr Laura Cahillane is an associate professor in law at the University of Limerick

Let’s get one thing clear on Article 41.2 (the woman in the home provision); it does not give, and never has given, any rights to women, provided any protections for women or been the source of any benefit for women. In fact, it has been entirely useless for women and for the advancement of women’s rights in society.

The article begins with a symbolic nod to the importance of a woman’s “life in the home”, it continues with an aspiration to prevent mothers from working outside the home against their wishes – but without actually placing any duty on the State to enforce that, and it ends with the declaration that mothers must not neglect their duties in the home.

It is not even entirely clear whether this “recognition” extends to women who are not married or are not mothers – this relates to the fact that the family in the Constitution is defined as the family based on marriage only – the subject of the second referendum.

Because this provision has never been of any benefit, it has been the subject of numerous reform reports. In 1993, the report of the Second Commission of the Status of Women recommended deletion.

In 1996, the Constitution Review Group suggested amending the provision in gender-neutral form. A year later, the first Progress Report of the All-Party Oireachtas Committee on the Constitution came to the same conclusion. Following criticism from the 2005 UN Monitoring Committee on the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the 10th Progress Report on the Family in 2006 recommended a similar amendment and suggested an investigation into the establishment of some “practical support”.

In 2013, the Convention on the Constitution recommended amending the provision to make it gender-neutral, to acknowledge the important role of other carers in the home and to ensure a “reasonable level” of state support for carers. The Department of Justice taskforce set up to consider these recommendations suggested proceeding with a gender-neutral replacement, but not committing to any form of support.

In 2022 the Citizens’ Assembly voted overwhelmingly for a gender-neutral and strong-form amendment, obliging the State to take “reasonable measures” to support care, and the Oireachtas Committee on Gender Equality endorsed this. Not one of these groups ever suggested retaining the current provision.

Yet surprisingly, there has emerged a narrative which rejects the proposed amendment due to fears that women will lose something because of it. The fears are that removing the current provision will remove protections or rights for women, or will erase women from the Constitution, or will mean the Constitution no longer recognises the work women do in the home.

But you can’t lose what you never had, and this article has never provided any of these things, beyond symbolic recognition – which, according to the proposed wording, will continue under the wider umbrella of care in the family more generally. (For those worried about the erasure of the word “women” from the Constitution – it remains in Article 45). It is also worth noting that statutory benefits are not dependant on the Constitution and replacing the article would have no impact on these.

There is a further narrative rejecting the proposed amendment as a protest that the amendment has not gone far enough to provide for actual supports for care. However, though it is a disappointment that the stronger wording recommended by the Citizens’ Assembly was rejected by the Government, the reality is that a No vote is not going to lead to any revised proposal – it is clear there is no intention to place any concrete duty on the State in this regard.

The thinking clearly reflects Éamon de Valera’s own view on this when he said that “how the State may endeavour to see that is quite another question. We leave the methods completely and absolutely open, as it is right that we should”.

A No vote will simply leave us with the current provision. But why should we care? The current provision has had minimal real impact and it is unlikely that its replacement will be any different, given that it contains almost identical language declaring that the State will “strive” to support care – which is not a legally-enforceable duty. The answer is that what we put in our Constitution matters – even if it is primarily symbolic – and the current provision is hardly a suitable sentiment for a modern Constitution.

“It’s like something from the Taliban”, one of my international students said. As the Chief Justice recently pointed out: “What the Constitution says, and the story it tells about our society, is important in and of itself.”

Do we want it to continue to maintain that women are defined by their duties in the home or after 87 years, would we prefer to see the Constitution recognise the care provided more generally in the family context? The Constitution should reflect society and societal values – it certainly did in 1937 – and we are given the power of amendment to make sure it still does.

This article first appeared in the Irish Independent on Tuesday 20 Feb