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The upcoming referendum on March 8, 2024, will see a revision being proposed to Article 41.2, removing the outdated language in favour of a more progressive and equal definition of care. But how will this change the role of women in Irish society, and what impact, if any, will it have? Han Tiernan elaborates.

It’s a widely held misconception that the Irish constitution contains the phrase “a woman’s place is in the home”. Although this exact phrase was never written in its own right, the wording of Article 41.2 strongly enforces the notion that women should be subjugated.

Currently, Article 41 of the constitution pertains to the ‘The Family’. It comprises three parts: 41.1 outlines the State’s legal definition of ‘family’; 41.2 refers to the duty of care within the family, in particular, the role of women in providing said care; and 41.3 outlines the legal grounds on which marriage is constituted – this is the article that was amended in the 2015 Marriage Equality referendum.

On March 8, the Irish public will vote on whether or not to amend the wording of Articles 41.1 and 41.2.

Article 41.2.1 currently 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.”

Article 41.2.2 bolsters this by stating: “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.”

So how did such oppressive wording, specific to women, come to be written into the Constitution when the previous Article (40) begins with the words, “All citizens shall, as human persons, be held equal before the law”?

Well, the answer lies in the history of its architecture and the qualification that “equal before the law” actually means the State can give “due regard to differences of capacity, physical and moral, and of social function.”

The Irish Constitution (Bunreacht na hÉireann) was first drafted in 1937 under the supervision of Éamon de Valera, who was then the Minister for External Affairs (now known as Foreign Affairs). While the drafting was carried out by his department's legal advisor, de Valera did not seek consultation with the Attorney General.

It has been widely documented that de Valera also received extensive soliciting from his close friend, John Charles McQuaid, then President of Blackrock College and later Archbishop of Dublin. In fact, John Cooney, author of John Charles McQuaid, Ruler of Catholic Ireland, asserts that de Valera “was bombarded with letters daily – sometimes twice a day” from Fr McQuaid. He divulges that the letters were “crammed with suggestions, viewpoints, documents and learned references on nearly every aspect on what was to become Bunreacht na hÉireann.”

Both men were known to hold similar conservative and often misogynistic views, which evidently informed their stance on the role of women in society and how this should be dictated by the Constitution.

De Valera’s constitution was ratified by plebiscite in July 1937, achieving a slim majority of 52.5 percent. It replaced the previous Constitution of the Irish Free State, which had been adopted in 1922 under an act of the Westminster Parliament. The ratification of the new constitution saw an end to Ireland as a Free State and identified it as a Republic.

Despite being passed, the new Constitution came under attack. In addition to the controversial question of Ireland’s sovereignty, it was heavily criticised for aligning the teachings of the Roman Catholic Church with the State above all other religions and for declaring a territorial claim on Northern Ireland. However, its strongest opposition came from the insertion of Article 41.2 and its oppression of women.

As historian Dr Mary McAuliffe reminds us, “This was part and parcel of the post-colonial faith-based Ireland, which produced a reductive and singular view of women's role as marital, domestic and reproductive.”

She recounted how, in June 1937, about 1200 women attended a meeting in the Round Room of the Mansion House to discuss the Constitution. By way of demonstrating the diversity of the women opposing the Article, McAuliffe cited a report on the meeting in the Irish Independent by Gertrude Gaffney, which read, “It was wonderful. They kept coming in droves: all women, middle-aged women, young women, working women, professional women, girls from the Sweep, and the civil service girls out of shops and offices. They filled every seat in the Round Room; they thronged the balconies, they sat on the steps of the stage, and some had to stand”.

McAuliffe believed it important to acknowledge the scope of opposition, especially as the inclusion of the Article would have the biggest impact on lower-income families, restricting mothers from working outside the home to provide for their children. As she described, it continued the process of “circumcising the position of women in our society, of insisting that her home, that the home, was her natural place to be.”

Orla O’Connor, Director of the National Women’s Council, described Article 41.2 as using “outdated and sexist language to limit women's life within the home”. She continued, “It represents Ireland's dark past, where women were treated as second-class citizens. It never reflected the reality of women's lives and their contribution to so many areas of society and community in Ireland.”

Whilst women had always left their roles as caregivers inside the home to seek gainful employment, Irish society didn’t begin to acknowledge this until the early ‘70s. Spurred on by the civil rights movement of the US and Northern Ireland, women in the Republic sought to create their own visibility and rights.

The second-wave feminist movement had begun to gain traction in the Global North, and in May 1971, the Irish Women’s Liberation Movement organised an action whereby women travelled by train from Dublin to Belfast to buy contraceptives, which were illegal to purchase in the South. Upon their return, Connelly station was filled with protestors, Gardaí and international news outlets.

By 1973, the movement was in full swing; the government finally lifted the ban on married women working in the Civil Service, Local Authorities and Health Boards; the Council for the Status of Women (later the National Women's Council of Ireland) was formed, resulting in the first commissioned report being published on the status of women in Ireland; and LGBTQ+ rights began to emerge with the formation of the Sexual Liberation Movement.

1973 also saw a number of seminal political events take place, culminating in creating a more liberal landscape in Ireland. On January 1, Ireland became an official member of the European Economic Community (EEC), later becoming the EU. Whilst the EEC was formally tasked with fostering economic integration, it would mean that Ireland would be under greater scrutiny to enshrine the rights upheld by the European Convention on Human Rights and all that Europe stood for.

On April 7, John Charles McQuaid passed away. Although he had resigned as Archbishop of Dublin in January 1972, he still cast a dark shadow over the Irish landscape. Two months after his passing, De Valera retired from his position as President of Ireland. He died in August 1975.

Dermot Keogh, author of Twentieth Century Ireland, suggests, “Ostensibly the old order was changing... Both men had been close friends in the 1930’s. They were representative of a culture of service that had been a feature of the political life of the young state. In the 1970’s, both men had lost their relevance. But the culture of service, upon which both had built their public lives, was an everdiminishing influence in a state which had come to revere the philosophy of radical individualism.”

From this point on, Irish society made massive strides towards becoming a more liberal, equal society. Over the next 50 years, Ireland would see the introduction of contraception, the passing of divorce, the decriminalisation of homosexuality, the introduction of civil partnership and later same-sex marriage, the introduction of gender recognition, and the abortion referendum, not to mention the hundreds of other legal and social changes that occurred in between.

With all these changes, unless you’ve read it – in the post- #MeToo and #WakingTheFeminists, post-2018 Abortion referendum – you could be forgiven for not knowing that Article 41.2 even exists in the Irish Constitution. Ireland 2024 seems like a reasonably enlightened, liberal place to be. So, what does it matter if a few old men wrote some misogynistic language 87 years ago? What difference does it make now?

Ailbhe Smith succinctly described, “The job of article 41.2 was not to lay down the law because that's not what constitutions do. Its job was to shape and to embed behaviours and attitudes effectively, to reinforce gender segregation and the gender division of labour, as indeed it did.”

She went on to explain what behaviours and attitudes she felt the Article's wording had imbued on Irish society. “It had a pervasive impact not only on how the state thought about women and our ascribed role but also, very importantly, on how women thought about ourselves and our place in the world.” Whether we believe it or not, these behaviours and attitudes still persist.

Figures released from the Central Statistics Office (CSO) last year, 2023, suggest that there is only a 9.6 percent difference in the gender pay gap in Ireland; however, if you break that down by sector, it is as high as 24.7 percent in the financial services sector, meaning that women earn nearly a quarter less than men for doing the same work (which by the way is illegal). As of September, the CSO also reported that only three in ten senior executives in Irish businesses were women, and as little as 19 percent were CEOs or chairpersons of a board.

But business is only the tip of the iceberg when it comes to disparities between the sexes. They are subject to far higher rates of gender-based violence, including femicide. They are still marginalised in healthcare, both in research and treatment, especially in the fields of mental health and heart disease. Women are subject to higher rates of poverty, particularly in older age (due to lack of private pensions) and those from migrant communities... and the list goes on and on... and on.

So if, as Smyth suggests, the Constitution does not “lay down the law.” what exactly will a Yes Vote change? For a start, the proposed amendment would remove Articles 41.2.1 and 41.2.2 in favour of a new Article 42B, which would recognise the care given by any family member, irrespective of gender. It would additionally place an onus on the State to recognise and support such caregiving.

The new Article would read: “The State recognises that the provision of care, by members of a family to one another by reason of the bonds that exist among them, gives to Society a support without which the common good cannot be achieved, and shall strive to support such provision.”

Essentially, unlike the Marriage Referendum (2015) and Abortion Referendum (2018), the new amendment won’t bring about any immediate legislative change, but it can and will have a very real impact. O’Connor best summed up how: “Voting Yes will... tell government and all political parties that the Irish people expect these referendums to be followed by real improvements in policy and legislation and to provide significant investment so that people can make real choices with regard to things like affordable childcare, care for family members, and supports for disabled people so they can live independent lives with autonomy and choice.”

She added, “These referendums are a first step towards real material change, but it's vitally important that we take that step to have that impact.”

Quotes from Dr Mary McAuliffe, Ailbhe Smyth and Orla O’Connor are taken from speeches given at the launch of the National Women’s Council #VoteYesYes campaign.

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