Article 41.2: Not Quite the Ireland We Dreamed Of
Gary Moloney is a graduate of UCC’s BCL (Law and Irish) programme and is currently pursuing an LLM in International Human Rights and Public Policy. He was a member of UCC’s triumphant Jessup Moot Court team in 2014/15. A former Vice Auditor of the UCC Law Society, he currently tutors first and second year law students in Dlí Bunreachtúil (Constitutional Law). A fully referenced version of the letter is available here..
It is, in my view, quite timely that the Fifteenth Annual UCC Law Conference looks to tackle one of the key elephants of Irish constitutional law; Article 41.2, which ostensibly assigns women a domestic role within the home. For many the observer, this provision, along with Article 40.3.3o, is emblematic of Ireland’s poor record when it comes to matters of gender equality.
Article 41.2.1o holds that the common good benefits from the work of women within the home. As a result, Article 41.2.2o states that women should not be obliged by economic necessity to work outside of the home causing neglect of their duties in the home. It is unquestionably a product of De Valera’s Ireland; a country of ‘happy maidens’, ‘cosy homesteads’ and ‘frugal comfort’. While we have made great strides in recent times with respect to marriage equality and gender recognition, there is still much work to be done. We continually fail over half of our population through discriminatory treatment, preventing Ireland from being a truly equal society in fact and in law.
In Sinnott v Minister for Education, Denham J, as she then was, stated 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. It is a recognition of the work performed by women in the home.
With great respect to the Chief Justice, even if that was the intent of Article 41.2, its inclusion sends a negative normative message. It does nothing in practice to empower women, but rather highlights an outdated traditional role which it presupposes women should be inclined to fulfil. Even though the learned Chief Justice argues that ‘[t]his special recognition is of the 21st century and belongs to the whole of society’, it is hard to reconcile that with the discrimination faced by women within Irish society in pay, bodily autonomy and job opportunities. It perpetuates the myth of complimentary gender roles, with the mother seen as the natural caregiver. It actively disregards the rising number of stay-at-home fathers and thereby entrenches traditional gender roles within Irish constitutional discourse.
The Chief Justice’s comments might also be more palatable were this recognition to lead to implementation of oft-forgotten economic and social rights, but this would not appear to be the case. In L v L, the Supreme Court rejected the argument that a housewife who worked exclusively in the home was entitled to an equitable interest in that house, holding that a married woman had to make a financial contribution in the form of actual income for such an interest to be created. Despite recognising that these equitable principles contradicted 41.2, the Supreme Court said they did not have the jurisdiction to engage in the transfer of property within a family. Finlay CJ found this to be the case despite also acknowledging the inconsistency in disadvantaging women who took up their ‘preferred constitutional activity’. Furthermore, in Sinnott, Keane CJ, held that while Kathy Sinnott’s contributions as a primary caregiver to her autistic son were worthy of ‘respect, admiration and compassion’, they were not grounds for damages with respect to the State’s breach of her son’s education rights. So if Article 41.2 doesn’t seem to confer any positive rights on women then what is its purpose? If its role is merely normative in nature then is it one that needs revisiting?
The Report of the Constitutional Review Group (CRG) suggested that a gender neutral version would alleviate some of the concerns raised. Such an amendment would be commendable, also adding some much needed recognition and protection for single parent families. On the recognition of the work of fathers as carers and the duties they hold with respect to care, Murray J in DT v CT held that Article 41.2 as part of a contemporary document could be interpreted so as to include fathers within its remit. Thus, the 10th Progress Report of the All-Party Oireachtas Committee on the Constitution noted that a gender neutral version could arguably be unnecessary. Nevertheless the report provided for a gender neutral alternative, albeit one not as open to including single parent families as that found in the Report of the CRG. Were we to agree with the All-Party Oireachtas Committee’s initial conclusion, an amendment to that effect would still be preferable and would go a long way to addressing core issues. As Professor Mullally has noted in her submission to the Constitutional Convention, ‘domestic care has often remained invisible with little official recognition of its significance to the everyday functioning of society’.
Article 41.2, in its current form, is a patriarchal antiquity which negatively impacts the whole of Irish society by entrenching traditional gender norms which we as a nation should strive to rise above. Its retention is potentially inconsistent with Ireland’s obligations under the Convention on the Elimination of Discrimination Against Women (CEDAW) given its sexist connotations with regards to gender stereotyping. The Ireland of 1937 may have been satisfied with dancing at the cross-roads, but it is clear that the Ireland of 2015 can no longer dance around its treatment of women within Bunreacht na hÉireann.
Mise le meas,