Why is the ‘women’s place’ referendum so controversial?

Article 41.2 of the Constitution – the so-called “women’s place is in the home” clause – is “archaic”, “sexist”, “offensive”, “patriarchal” and “misogynistic” in the words of its critics, and there have been many down the years.

The Article in Bunreacht na hÉireann 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.”

It goes on: “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.”

When it was created in 1930s Catholic Ireland, Article 41.2 reflected the State's attitude towards women, illustrating the then widely-held belief that a woman's value was confined to the home and that it was the State's obligation to ensure her duties there were not neglected.

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Such a society no longer exists, and calls were made to alter the Constitution to recognise this. A referendum to delete the Article was proposed for October 26th, before being postponed on Wednesday.

So, how did a referendum with no publicly-declared opponents get derailed in such spectacular fashion?

There were differing views about whether the Article should be deleted or amended to acknowledge the importance of care within the home.

The first signs of trouble emerged at a Cabinet meeting in June. Minister for Justice Charlie Flanagan sought approval to hold a referendum to delete the Article, rather than amend it. Amending the Constitution may result in unforeseen consequences and clumsy outcomes, he explained.

Few doubted the legal advice he outlined, but Minister for Children Katherine Zappone urged Mr Flanagan to speak to the women's caucus within the Oireachtas before proceeding. Her plea was supported by Minister for Social Protection Regina Doherty.

Mr Flanagan met with the caucus and the following week returned to Cabinet with the same proposal, but this time he secured Government approval for the referendum.

The Oireachtas justice and equality committee expressed doubts about the road being taken, but then decided to waive its right to hold a pre-legislative scrutiny hearing that would have derailed the plans. On Wednesday, the committee of TDs and Senators changed its mind.

Consensus for change

There is a general consensus that the current wording cannot be maintained. In 2013 the Constitutional Convention 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.

Labour Senator Ged Nash has said: "Article 41.2 has no place in the Constitution. It is sexist and offensive and it should be removed.

“A conversation recognising the value of carers absolutely should take place, it is a long overdue one, but we should not have to wait to remove this offensive clause.”

Senator Alice Mary Higgins had a differing view: "I strongly believe the current wording needs to go. But if the Government is going against the advice of its own internal taskforce and the Constitutional Convention, it needs to be clear on the logic for that decision."

Without unwavering support from key political figures, there is a fear this referendum would meet the same fate as the referendum on Oireachtas inquiries.

In 2013, voters were asked if the Oireachtas committees should have the power to hold people to account. The then government took its eye off the ball and the referendum was defeated thanks to the interjection of a number of key figures in the final days of the campaign.

The current Government’s motives in pursuing deletion have been called into question. Amending the Constitution to recognise care work may require the State to pay such carers properly for the duties they carry out.