Women’s Invisible Labour, Kinkeeping and Care: Ireland’s 8 March Constitutional Referendum

by | Feb 26, 2024

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About Mairead Enright

Máiréad Enright is a Reader in Feminist Legal Studies at the University of Birmingham and a Leverhulme Research Fellow.

On International Women’s Day, Ireland will hold votes on two proposed changes to Article 41 of  the Constitution. The first would extend constitutional protection to families other than those based on marriage, while preserving marriage’s special constitutional status. The second, the focus of this piece, would remove the current provisions referring to women’s life and duties within the home, replacing them with new text on the provision of care by family members to one another.  The existing “woman and the home” provisions contain an acknowledgment and a promise:

“[B]y 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”.

While the second part of this couplet seemingly offered economic support in exchange for women’s endless domestic labour, in practice, the courts have declined to read it as such. Most recently, the High Court held that this constitutional provision cannot, for example, be used to challenge a reduction in carers’ allowance.* At  best, the provision is a patriarchal insult with no compensatory paternalism. In 1937, many leading Irish feminists objected to the provision. Many feminists today argue that removing it is essential to the project of unmooring the constitution from its conservative Catholic origins, and ensuring that past harms cannot be repeated. On this view, the referendum is part of a wider process that also involved legalising divorce, recognising same-sex marriage, deconstitutionalising abortion and, now, extending constitutional protections to “unmarried” families. By comparison with these amendments, the effects of removing the constitutional reference to women within the home are largely symbolic. However, as Eoin Daly shows, Irish referendums are increasingly used as an identity-affirmation ritual; distancing today’s more liberal Ireland from the darker elements of its past (while glossing over  the assorted darknesses still marking its present). As such, symbolism carries extraordinary weight.

The problem is that voters on March 8 cannot remove the “women in the home” provision from the constitution without simultaneously inserting the government’s new proposed provision on care. That proposal’s defects are apparent on the surface of the text itself; in the weak commitment to “strive to support” care within the family, and in the insistence that, if some justiciable entitlement somehow emerges from all that striving, it will only apply to care provided “by members of a family to one another by reason of the bonds that exist among them”. The Citizens’ Assembly on Gender Equality recommended a more demanding provision, positively obliging the state to take “reasonable measures” to support care, within the “community” as well as within the family. By contrast, the government’s proposed text would constitutionalise the status quo around family care. To the government’s annoyance, the  Free Legal Advice Centre argues that the government text is sexist, because in Ireland women do most unpaid family care work. Those advocating a Yes vote argue that the new provision will “send a message”, reframing care work and facilitating meaningful policy change. However, it seems clear that the text provides no new  concrete rights to public, state-funded supports. In particular, it does nothing to recognise disabled people’s rights to the resources necessary to live independently of family, or disabled children’s rights to access education or healthcare. Given that Ireland has not ratified the Optional Protocol to the UNCRPD and does not have any strong  alternative statutory framework on disability rights, this statement of the government’s desired constitutional position is deeply offensive.

By requiring an apparent trade-off between women’s citizenship and disability rights, the referendum vote irritates familiar fault-lines in Irish feminist politics between NGOs committed to pragmatic programmes of incrementalist reform, and others who demand more openly intersectional and transformative approaches. Discomfort around this trade-off has created some strange bedfellows since, of course, right-wing actors have their own reasons for voting to retain the current constitutional arrangement. Equally, the referendum should rekindle political focus on the constitution’s limitations as a resource for social transformation. The “women in the home” provision, law since 1937, did nothing for working class families denied the safe home or basic income needed to raise a family in dignity. It seems now that the new “care” provision will do little or nothing to guarantee the basics of a good life for children, older people or disabled people. Ireland’s neoliberal government has paid some lip service to feminism by offering a referendum, but without disturbing any of the constitution’s fundamental assumptions around socio-economic rights. The question now is whether the voters will buy it.

*An appeal is listed to be heard by the Supreme Court after the referendum in April.

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