The Speakers chair or 'Cathaoirleach' in Ireland's Seanad chamber. Picture Credit: PETER MUHLY/AFP via Getty Images

Irish women are being stripped of constitutional rights

Article 41.2 makes maternity leave a woman’s right, not an obligation, so why do so-called “progressives” want to get rid of it?

Artillery Row

With breathtaking cruelty, on International Women’s Day last year the Irish Government announced plans to hold a referendum to remove Constitutional protection for mothers.

Voters busy with jobs and families could be forgiven for believing the yarn which has been spun for years now that Article 41.2 of the 1937 Constitution, with which all law and policy within the State must align, limits the role of women to “duties in the home”.

Minister for Equality Roderic O’Gorman (Green Party) told the Dáil (lower house) before Christmas, “Those words seek to contain women in a singular role, a role completely divorced from the reality of women’s lives and their careers across our country today”. But he went further earlier this month when he threatened that: 

Organisations who regard themselves as progressive would have to explain why they want to maintain the ‘status quo’ if they campaign against a Yes vote in the referendum on removing the article from the Constitution about a woman’s place being in the home…

Not surprisingly, the plethora of “non-governmental” organisations which are largely State-funded quickly took on board the minister’s warning despite a lukewarm and even critical response from some to the suggested wording. 

What’s striking is the apparent rush to get this passed

The National Women’s Council of Ireland (NWCI) for instance, the “leading national representative organisation for women and women’s groups in Ireland” (which believes that “By ‘woman’ we refer to any person who identifies as a woman” and includes a man who “identifies” as a woman on its board) was first off the mark a few days later. With a bare faced porkie in The Irish Times its director Orla O’Connor said “It gives the State the oppressive role of keeping women from careers or employment of our own

And despite the fact that the Government recently set up a National Counter Disinformation Strategy Working Group the identification of mis or disinformation appears to only work one way: there is no outlet for citizens to point out that the misinformation on this referendum is coming from the political establishment. Except at the ballot box, that is.

Opposition has now begun to mobilise as women become aware of how they have been misled for decades. Because what the drafters of Art.41.2 added some 86 years ago was this sub-clause, in the language of its time:

2° 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 

Many mothers are now expressing the wish that they had known about this “protective guarantee” to allow them to stay at home with their children at least for a while. According to the late Mr Justice Brian Walsh of the Supreme Court and the European Court of Human Rights this provision could also be described as a “Constitutional social imperative”.

But although this article was not without controversy even from the beginning, some have argued that the provision did not intend to either confine women to the home or to limit the rights of women. Former Chief Justice, Ms Justice Susan Denham said in a 2001 case that, 

Article 41.2 does not assign women to a domestic role. Article 41.2 recognises the significant role played by wives and mothers in the home. This recognition and acknowledgement does not exclude women and mothers from other roles and activities...The work is recognised because it has immense benefit for society.

Senator Michael McDowell SC, (KC in UK) a former Attorney General and Minister for Justice points out that in fact it supports women through the tax and social welfare systems. Geoffrey Shannon SC, now a judge, has also warned that the removal of this provision from the Irish constitution could affect maintenance payments in family law cases

What’s striking is the apparent rush to get this passed.  Senator Rónán Mullen reported recently that just before the Christmas recess and at very short notice, the Government persuaded a private meeting of a Joint Oireachtas Committee on Children & Equality to waive pre-legislative scrutiny on what are two referendum proposals.

Deputy Holly Cairns, leader of the Social Democrats said in the Dáil:

Because this Bill was rushed past the pre-legislative scrutiny process, we have no idea going into this debate why the Government has chosen the wording it has presented to us.

The Seanad (upper house) has not yet passed the necessary stages allowing the Electoral Commission to do its work in informing the public. Law professor Donncha O’Connell said on Twitter/X this week:

Just before Christmas a hearing was also scheduled in relation to an appeal to the Supreme Court, over a decision of the Social Welfare Appeals Office with regard to a mother’s entitlement to Carer’s Allowance in which Art 41.2 is cited. 

The second referendum to be held has commentators scratching their heads in its attempt to broaden the nature of the definition of “family” to include “durable relationships”. Senator Michael McDowell wondered on national radio last week if this might mean that three people living together would be afforded the same status as that of the family based on marriage? Or a “throuple” as a newspaper headline was delighted to put it. 

Writing in The Irish Independent journalist Senan Molony posed the mischievous question as to whether the referendum on “women in the home” is really about anything other than giving voters the chance to give politicians a “wallop” before the serious business of local and European elections take place later this year.  

It’s when politicians are at their most high-minded and sincere that you really ought to be worried about being taken for a ride. 

So when does voting take place? On March 8th — International Women’s Day. 

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