Women and the Irish constitution - sunlight in the Irish Times

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These letters to the editor were published in today’s Irish Times:

Women and the Constitution
What is a woman?

Sir, – Your article “Doubts grow over ‘women in the home’ referendum – concern in Government that campaign could lead to divisive debates” (News, August 28th) provides some hope that the politicians are starting to actually “read the room” rather than simply do the bidding of the NGOs they fund so well.
If the Government or the NGOs actually cared about outdated and sexist language, they would review the Gender Recognition Act, which was implemented in 2015. This Act affords a man a female birth certificate if he promises to “live as” a woman. Nothing could be more offensive.
Having asked many politicians and the National Women’s Council of Ireland, for three years now, how one “lives as” a woman, without any reply, my conclusion is that the way to live as a woman is to be born female. – Yours, etc,
SARAH HOLMES

Sir, – Your article delivers very disappointing news. I am one of thousands of women and men who were looking forward to asking those in favour of making constitutional changes the following question: what is a woman?
The terror that this question generates is astonishing. Politicians are so afraid of it they’ll cancel a referendum to avoid being asked it.
Hell hath no fury like a woman scorned but it is nothing in comparison to the fury of women who understand the biological reality of being female is being erased via legislation. The question remains, and it will be asked in the local and general elections. The answer is simple. A woman is an adult human female. – Yours, etc,
SANDRA ADAMS,

Some background:
Ireland's constitution currently states the following:
1. 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.
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.

A recent citizens’ assembly recommended the article be changed to reflect modern life and the government duly agreed to hold a referendum this November. But insiders are now saying that won’t happen as they haven’t even agreed on wording to replace it because it’s a shitshow nobody wants to touch. It seems the government is only now realising that rather than being an easy win (it is after all a ridiculous article that doesn’t even have any positive impact in the real world) they‘ve accidentally brought the issue of gender and women’s rights to the fore.

I always thought that politicians were supposed to understand the new laws they introduce, and how they interact with existing laws. With any other job you have to demonstrate a basic level of competence, how have they been getting away with this for so long?

Bit of a sea change at the Irish Times then. Such letters would never have been published in 2017. If they do put the Referendum on the long finger indefinitely it will save the blushes of the useless opposition as well as the governing coalition.

The ironic thing here is that any putative new wording would not need to grapple with issues around gender. That's the entire point. You could scrap the wording entirely, or amend it to reflect that the contribution to the common good spoken about in the Article arises from all of those who work in the home (i.e. not just women).

So regardless, any new wording would not necessarily require any definitional debates around the definition of a woman or a man etc.

The far thornier issue is that the article has never had any practical real world impact (to the benefit at least) - mothers are obliged by economic necessity to work outside the home. And the Government was never going to change the article from an aspirational and unenforceable one to one which gives parents some enforceable right to economic conditions that allow them to be stay at home parents.

So simply removing the Article as an outdated relic would be the best option.

They can't remove the article without public consent, and no-one who has benefited from any of the supports that enable people to provide the state with that service by caring in the home will vote for that consent. And they'll be very vocal about why not.

Extend the supports to everyone if that seems desirable, but don't take them away.

The politicians don't give a damn about women, they just want to save money and pull the rug away from under the most dependent and defenceless.

Of course you couldn't remove it without public consent.

But it is simply not the case that Article 41.2 provides any benefits at all for women.

It has been relied upon fairly rarely, and there are no examples of women successfully using it to enforce rights. There was an attempt in 1992, in BL v ML, to ensure women had a right to a share in the family home after a marriage breakdown, but that was rejected by the Supreme Court.

There is simply no financial support currently provided to mothers or female carers which is constitutionally mandated.

But there is support for carers (not enough, but it's there - carers' allowance, access grants, respite care, home help), and property rights have moved on a lot since 1992, not least because there is nor provision for divorce. Fact remains trying to remove that article would not go smoothly.

The reference to 'women' is irrelevant, since any adult human can be a 'woman' if they want to be. Another thing the politicians will not want debated in any detail.

But none of that support exists because of Article 41.2. It exists because of choices made by Governments, and it can be altered or removed by a future Government.

I’m sure an amendment will pass, as pp said it will be opposed by SAHM and their partners. Any proposal to increase the lot of working mothers (eg subsidised childcare) receives objection as do measures, such as tax individualisation, which could be seen as in any way one salary families.

Sorry, that should be I’m NOT sure an amendment will pass.

https://mobileapp.irishtimes.com/politics/2023/08/28/doubts-grow-over-women-in-the-home-referendum/

I posted the original article on Craicnet yesterday. It really seems like politicians are worried that people on the ground are not as accommodating of gender ideology as the Irish Times would have us believe.

@PlanetJanette if they were to have a referendum on this they'd have to debate every aspect of it, real or imaginary, from all viewpoints, in public, for at least three weeks. They don't want to do that. Imagine LiveLine callers-in.

They can't change so much as a comma or a full stop without shining bright sunshine on the whole thing, including the gender issue. I suspect there are lots of ambitious pols who will be only to happy to sink the whole thing if only they can shaft Helen McEntee at the same time - she is in deep doodoo - but they know they might all go down at the same time.

Why do you think either removing it or making it gender neutral would ‘shine a light on the gender issue’?

Any replacement would not depend on an agreed definition of men and women.

Doesn't matter - once there is compulsory public debate all the people who have been shut out of discussion of the gender issue for the last eight years will be ready to go - official Ireland has been trying to link the referendum to gender all along, and it will have no control of what is broadcast.

FUNDAMENTAL RIGHTS

PERSONAL RIGHTS

ARTICLE 40

1 ° All citizens shall, as human persons, be held equal before the law.

This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.

2 1° Titles of nobility shall not be conferred by the State.

2 2° No title of nobility or of honour may be accepted by any citizen except with the prior approval of the Government.

3 1° The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

3 2° The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.

3 3° Provision may be made by law for the regulation of termination of pregnancy.

......

THE FAMILY

ARTICLE 41

1 1° The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.

1 2° The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.

2 1° 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.

2 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.

3 1° The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.

3 2° A Court designated by law may grant a dissolution of marriage where, but only where, it is satisfied that –

i there is no reasonable prospect of a reconciliation between the spouses,

ii such provision as the Court considers proper having regard to the circumstances exists or will be made for the spouses, any children of either or both of them and any other person prescribed by law, and

iii any further conditions prescribed by law are complied with.

3 3° Provision may be made by law for the recognition under the law of the State of a dissolution of marriage granted under the civil law of another state.

4 ° Marriage may be contracted in accordance with law by two persons without distinction as to their sex.

EDUCATION

ARTICLE 42

1 °The State acknowledges that the primary and natural educator of the child is the Family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children.

2 ° Parents shall be free to provide this education in their homes or in private schools or in schools recognised or established by the State.

3 1° The State shall not oblige parents in violation of their conscience and lawful preference to send their children to schools established by the State, or to any particular type of school designated by the State.

3 2° The State shall, however, as guardian of the common good, require in view of actual conditions that the children receive a certain minimum education, moral, intellectual and social.

4 ° The State shall provide for free primary education and shall endeavour to supplement and give reasonable aid to private and corporate educational initiative, and, when the public good requires it, provide other educational facilities or institutions with due regard, however, for the rights of parents, especially in the matter of religious and moral formation.

CHILDREN

ARTICLE 42A

1 The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights.

2 1° In exceptional cases, where the parents, regardless of their marital status, fail in their duty towards their children to such extent that the safety or welfare of any of their children is likely to be prejudicially affected, the State as guardian of the common good shall, by proportionate means as provided by law, endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.

2 2° Provision shall be made by law for the adoption of any child where the parents have failed for such a period of time as may be prescribed by law in their duty towards the child and where the best interests of the child so require.

2 3 Provision shall be made by law for the voluntary placement for adoption and the adoption of any child.

4 1° Provision shall be made by law that in the resolution of all proceedings—

i brought by the State, as guardian of the common good, for the purpose of preventing the safety and welfare of any child from being prejudicially affected, or

ii concerning the adoption, guardianship or custody of, or access to, any child,

the best interests of the child shall be the paramount consideration.

4 2° Provision shall be made by law for securing, as far as practicable, that in all proceedings referred to in subsection 1° of this section in respect of any child who is capable of forming his or her own views, the views of the child shall be ascertained and given due weight having regard to the age and maturity of the child.

DIRECTIVE PRINCIPLES OF SOCIAL POLICY

ARTICLE 45

The principles of social policy set forth in this Article are intended for the general guidance of the Oireachtas. The application of those principles in the making of laws shall be the care of the Oireachtas exclusively, and shall not be cognisable by any Court under any of the provisions of this Constitution.

1 ° The State shall strive to promote the welfare of the whole people by securing and protecting as effectively as it may a social order in which justice and charity shall inform all the institutions of the national life.

2 ° The State shall, in particular, direct its policy towards securing:–

i That the citizens (all of whom, men and women equally, have the right to an adequate means of livelihood) may through their occupations find the means of making reasonable provision for their domestic needs.

ii That the ownership and control of the material resources of the community may be so distributed amongst private individuals and the various classes as best to subserve the common good.

iii That, especially, the operation of free competition shall not be allowed so to develop as to result in the concentration of the ownership or control of essential commodities in a few individuals to the common detriment.

iv That in what pertains to the control of credit the constant and predominant aim shall be the welfare of the people as a whole.

v That there may be established on the land in economic security as many families as in the circumstances shall be practicable.

3 1° The State shall favour and, where necessary, supplement private initiative in industry and commerce.

2° The State shall endeavour to secure that private enterprise shall be so conducted as to ensure reasonable efficiency in the production and distribution of goods and as to protect the public against unjust exploitation.

4 1° The State pledges itself to safeguard with especial care the economic interests of the weaker sections of the community, and, where necessary, to contribute to the support of the infirm, the widow, the orphan, and the aged.

4 2° The State shall endeavour to ensure that the strength and health of workers, men and women, and the tender age of children shall not be abused and that citizens shall not be forced by economic necessity to enter avocations unsuited to their sex, age or strength.

@PlanetJanette You have grown up in a time of a welfare state and dont understand that the provision of welfare is a social choice.
Look at the history of mother and baby homes they originated from Poor House law where the poor were housed and fed to prevent them starving to death in a ditch.

The governments failed to recognise that a mother and child is a family

mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.

inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children.

The government failed to make provisions which allowed mothers to raise their children

The Family Article is not giving men recognition as being 'needed' for the common good or fathers economic protections to sustain a family unit.
If memory serves me a father took the Irish governement to court and the ruling was that he is not entitled to the childrens allowance and the mother had to waive her rights to the payment.

Then take the position that a family and the mother has no right to social welfare who gets to take the children?

I am not Irish but it seems to me that supporting a woman's right to stay at home and raise her children is a right worth supporting. Most governments want to persuade women to put their children into nurseries as young as possible (6 weeks in the UK) and go to work. I think this is a patriarchal exploitation of women and a devaluing of motherhood - something the patriarchy like to ignore since the creation of new human beings by one's own body is not something that men can do.

You may be right.

What a pity that an archaic and misogynistic piece of the Irish constitution will likely remain as a result of the probable bad faith arguments of some people claiming to be feminists.

Is it archaic and misogynist, or are @Grammarnut 's views interesting and valid? Is it non-feminist to support women?

Two divorce votes
Two EU votes
Three abortion votes

If asked to replace woman and mother the debate will be focused on what words are used and how the role women play in Irish society is recognised. At the end of the day most people agree that children need at least 1 parent as the State has a poor history of child safeguarding.

3 1° The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.

So if the citizens are going to be asked to define what a family means and what a home means it is going to get messy.

Yes, I definitely think there is something in this.
I have a feeling this referendum was supposed to shore up the concept of gender in some way, by removing explicit references to women in the constitution (maybe I'm wrong but I don't trust the government on this issue), and would be interested to know who are the lobby groups pushing this.

Yes, it is misogynistic and archaic.

Firstly, it has no practical benefit for women at all. It does not confer a single enforceable constitutional right. It is a statement of principle. Entirely 'aspirational'.

But it does set out that the expectation is that it is women who will work in the home and raise children, not men. I don't think you need me to explain why a society structured around the expectation that women rather than men will work in the home and raise the children is not a feminist approach.

41.2 doesn't mention the family, so 41.3 is also largely irrelevant.

If your argument is that some people will make bad faith arguments during the campaign, falsely trying to link this issue to the 'gender issue', then I agree, that may well happen. And it may well be a reason this amendment gets dropped.

As I say, what a pity that the Irish Constitution will continue to be saddled with a regressive provision because some so-called feminists would use the referendum to make bad faith attempts to link it to an entirely different issue.

Under Irish law, any adult human being can be a woman and can claim any rights that XX chromosome women have, and be subject to the same expectations. Likewise, any adult human being who doesn't want those rights or obligations can be a man. No need for XY chromosomes.

They don't need constitutional change for that.

Take away social welfare, no child benefit payments, no "free" education, no state funded hospital system, no rent supplements no public housing etc. etc.

The State owes its citizens no financial aid.
You go to work or starve or are given charity.

2 1° 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.

2 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.

What right do men have and what right do women have when a baby/child needs care?

So?

Are you saying women should have to legally change their sex under the Gender Recognition Act 2015 just to avoid a constitutional expectation that they are the ones in the home raising kids? That's ridiculous.

As I've already pointed out, the relevant article does not have any practical, enforceable impact. It's impact is purely in the realm of how society sets its priorities and what that means for broader social policy.

Put simply, a society whose highest legal text sets an expectation that it is women who work in the home is a bad society for women. Not because the provision gives any enforceable ways for individual women to be 'forced' into the home, but because it sets the tone for broader social policy that placed higher expectations on women than on men.

A legal change of sex under the GRA does not change that fact. And using bad faith, irrelevant, gender critical arguments to sink a change to the constitution is most certainly anti-feminist.