‘Women’s place is in the home’: Citizens’ Assembly again tackles thorny issue

Lessons learned from Eighth Amendment on abortion over unintended consequences

There is “very little consensus” on what should replace the article in the Constitution about a woman’s place in the home, the Citizens’ Assembly has heard.

The assembly on gender equality is debating the issue of Article 41.1 on the family, which 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.

“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.”

It is the second time that a Citizens’ Assembly has debated what is commonly known a “woman’s place is in the home” clause.

The Constitutional Convention in 2013 recommended amending Article 41.2 to make it gender-neutral, and recognising the importance of care work and providing for a reasonable level of State support for carers.

Following on from this, a taskforce established within the Department of Justice recommended two options. One was to make the wording gender-neutral to recognise care work in the home and to provide that the State would endeavour to ensure support for carers in the home.

The second approach was to give a purely symbolic recognition to home and family life and to include carers generally in Article 45.

Addressing the citizens, who are meeting virtually, Dr Laura Cahillane, a senior lecturer in the School of Law in Limerick, said the proposed wording arising out of the Constitutional Convention said the original Article 41.2 conferred no benefit for carers in the home and "quite possibly the replacement provision might have the same place".

She said the original provision has no use in law. The implication that the act might confer some financial obligation towards women was never tested. It was only raised in one case, which was unsuccessful.

“It is very unlikely that an interpretation would give any benefit to women in the home,” she said.

‘Clarity and simplicity’

There were two alternatives. The first was simply to repeal Article 41.2. This would have the benefit of “clarity and simplicity” and would rid the Constitution of “meaningless provisions” but it would also mean that there would be no recognition of caring in the Constitution, she stated. The second was to include an alternative wording.

The one from the Constitutional Convention states: “The State recognises that home and family life gives to society a support without which the common good cannot be achieved. The State shall endeavour to support persons caring for others within the home as may be determined by law.”

She said it could be included in Article 41 only if it deals with carers in the home or in Article 45.

She believed it would “more than likely” not lead to any financial benefit for carers, though its inclusion in the Constitution might provide an incentive to politicians to make better laws for carers.

“It is important to be clear about what you are putting into the Constitution and have as little ambiguity as possible,” she said.

Lessons had been learned from the Eighth Amendment on abortion as to the unintended consequences of constitutional amendments.

An alternative option is to create an obligation within the Constitution on the State to help carers. This is not supported by the Government and it would be unusual to include in the Constitution any financial obligation on the State.

“It is quite unlikely that this would be accepted by Government,” she said.

The 99 members of the assembly and its chair, Dr Catherine Day, have been meeting online to address the issue of gender equality since the pandemic developed.

In advance of the session on Article 41.2, Dr Day said she hoped options would emerge from it that the citizens can vote on in April.

She added: “I am really pleased that despite the current Covid-19 pandemic, the Citizens’ Assembly has continued its work online and we are now moving into the final phase which is preparation for voting.

"Gender inequality impacts all across our society and this has become even more apparent during the pandemic. I look forward to working with our dedicated members to develop a comprehensive set of recommendations to the Oireachtas to advance gender equality in Ireland. "

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