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Citizens' Assembly meets to discuss constitution clause on ‘women in the home’

The Assembly heard that Article 41.2 of the Constitution came from “a very different time, for a very different Ireland.”

Image: PA

THE CITIZENS’ ASSEMBLY is meeting to discuss the potential removal of an article on the place of “women in the home” from the Irish constitution.

The meeting, which is taking place online, involves 99 citizens selected at random who will determine whether Article 41 of the Constitution should be kept, removed or replaced.

The aim of the meeting is to determine the wording of a ballot paper on this issue, which will be voted on at the end of the Assembly process in April. 

Assembly chair Dr Catherine Day told participants that the article had come from “a very different time, for a very different Ireland”.

Day said that “since then, Ireland has gone through a very significant change, opening up to the outside world, taking different views on many social questions and setting different expectations of what we want government and the institutions of our State to do”.

“Probably nothing exemplifies the changes of the past 84 years more than Article 41,” she said.

“I very much doubt whether such an article would be acclaimed in a referendum today. It has been criticised over many years, including by Irish and international human rights organisations.

“And as you know, the Convention on the Constitution, as long ago as 2013, basically called for amendments to the Constitution to change what we all call the ‘woman in the home’ clause.

“What we want to know is whether you feel it should be kept as it is, so no change to the Constitution.

Should it be something deleted, taken out of the Constitution, or should it be replaced by something else?” 

Article 41 of the Constitution recognises the role of the family unit in society.

It is Article 41.2 which is at the centre of the debate.

It states: “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.”

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“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.”

The Assembly heard from Dr Laura Cahillane, a law lecturer at the University of Limerick, who argued that the provision is of little use in law.

She noted that when the Constitution was written in 1937, Eamon De Valera told the Dail the intention was not to interfere with the rights of women, or to prevent them from working.

She added: “Despite the assurances from those in power that women’s rights would not be curtailed, that is exactly what happened in the years that followed.

“And while the societal changes and the influence of the women’s movements later on meant many improvements in the lives of women, this constitutional provision was not part of that change.

“And so that raises the question, is the provision of any use in law. And the short answer is probably not.” 

Dr Cahillane said if the option to replace the Article is picked, it is likely to be a gender neutral alternative that would recognise the role of care work in the home.

“This one looks like a reasonable option, it has the benefit of removing the outmoded and paternalistic language which currently exists, while also giving recognition to the work that carers do in the home,” she said.

But she also warned that there may be little value to this approach.

“The current provision has been of no use to carers, and it’s quite possible that a replacement provision would have the same fate.

“The crucial issue here is that reform is badly needed in the area of care work, but you don’t need a constitutional amendment in order to address that.”

Deleting the article, she said, “has the advantage of clarity, certainty and simplicity”.

“In the first place, it removes the derogatory and insulting language, but it also removes the potential for any unintended interpretation of the provision at some point in the future” she added.

The disadvantage of this approach is that it removes any recognition of care work from the Constitution entirely, Dr Cahillane said.

“Legislative action is the only way that real change can be achieved in this area.

“So, you could say that having arguments about what wording should replace Article 41.2 might only prove to be a further distraction and might further distance any potential real reform, and real reform can easily be achieved through legislation.”

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