Let’s talk about…The Article 41.2 referendum

‘Women in the home’ referendum (ironically) feels more like spring cleaning than real progress

For each of us, there no doubt exists a closet space, a press, or a corner in the back of the shed that is piled up with crap, that is long overdue getting sorted and the things in it dispensed with. You can imagine the litany of random items you would find in there, the little relics from years gone by; an Xtra-vision DVD you never returned, someone’s old primary school copybook, a dusty VHS player, an exercise mat from that phase a couple years ago where you swore, really swore, that you were going to get into Pilates.

In all the hustle and bustle of keeping an entire house in order, there’s bound to be a couple of forgotten corners that get overlooked, that escape the general upkeep that sweeps through the rest of the home.

Over the past several months, as discourse unfolds around the referendum on Article 41.2 regarding ‘women in the home’, this idea – of a house being upkept and evolving over the years but a few areas being forgotten about somewhere along the way – sort of reminds me of how the outdated constitutional clause has kept its place for so long.

Women in the home

Article 41.2 proclaims that “mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home”, a clause which has understandably been criticised for perpetuating (and indeed constitutionalising) gender stereotypes; establishing domestic duties as a mother’s designated first priority and main responsibility, while making absolutely no reference to the duties of the father. As such, the upcoming referendum, which seeks to change this constitutional clause, is being represented as a big win for women. One need look no further than considering the day voting has been (re)scheduled for – March 8th, International Women’s Day – to see this.

But in reality, as much as any constitutional declaration that a woman’s place, by default, in the home is an outdated one, this referendum feels far from groundbreaking. In practice, this is not a clause that routinely affects women in the workplace today in the same way other clauses it copperfastened in the past, like the marriage bar, consistently did. Women’s rights and general support for gender equality have marched on so monumentally since the time of that article’s writing, so much so that even despite its retention over the years, the lived experience of a woman in today’s Ireland is one which, in practice, benefits from a level of equality miles removed from Article 41.2’s implications. As undeniably problematic and antiquated as it is, Article 41.2 has become a dead letter, and in that sense, the referendum to change it feels sort of like admin, like finally getting around to clearing out that junk press after all these years – except instead of realising you never did return that Xtra-vision copy of The Lion King, it’s realising you never did take back that declaration saying woman belong in the home and not the labour force… oopsies?

But in any case, because of how essentially unimplemented the Article is anyways in modern society, a significant amount of women, and people in general, have suggested the upcoming referendum is placatory. And I see where this is coming from. As mentioned, I do think it’s been overexaggerated how big of a ‘win’ this would be for gender equality given the dead letter Article 41.2 has effectually become, and I am suspect of how much certain politicians are presenting it as such, when in reality, while necessary, changing the article is more long overdue than anything – you don’t get points for finally clearing out the back of the press when you were the one who neglected to do it for (almost ninety) years.

Even more so when you consider how vocal opposers of Article 41.2 have been – all the way back when it was written in 1937 through to more recent times, with the Constitutional Convention in 2013, the Citizens’ Assembly in 2021, and the Oireachtas Committee on Gender Equality in 2023. And even more so again when you consider how even now, now that something is finally being done, vital recommendations given by that 2021 Citizens’ Assembly were effectively ignored while drawing up new wording with regards to another key part of Article 41.2.

Recognising the value of care

In addition to the bit about prioritising women’s duty to the home, Article 41.2 also outlines that “within the home, woman gives to the State a support without which the common good cannot be achieved”. The upcoming referendum proposes this be deleted and instead a new article, 42B, be inserted that says care given by family members “gives to society a support without which the common good cannot be achieved and (the State) shall strive to support such provision”. At a glance these two statements read incredibly similar, the only major change being the gender-neutral language used. And while such a change is progress in the overdue, admin-y, cleaning out the junk press way, the wording used (or rather the wording that wasn’t used) is indicative of a missed opportunity to have this referendum enact actual, significant progress.

This part of the current article (and the proposed 42B) quite importantly and explicitly recognises the value of care – however only in a symbolic way. The 2021 Citizens Assembly sought to amend this by recommending the new proposed version outline that the State is obliged to take reasonable measures to support such care. However, the closest the proposed wording gets to this is saying the State will ‘strive’ to support this care, the word ‘strive’ conveniently side-stepping the Government having to take on an actually constitutional responsibility to support care, side-stepping the option of having a tangible standard for State support that carers could rely on in the courts.

It is telling that the Assembly’s recommendations went ignored in this regard. It is telling that in discussing this referendum, the State and politicians conflate the significance of what the change would do for women, when a much more significant change would be to ensure State support for family members that provide care – who, overwhelmingly, are women. Because despite progress in societal attitudes on paper, women in general still perform the vast majority of domestic familial duties – in Ireland, 65% of women in opposite-sex relationships have main responsibility for household chores, and are also expected to act as the primary caregiver for children… in addition to working as much as their male partners.

Upcoming referendum

As much of a pity I find it that the State neglected to listen to the proposed wording with regards supporting care, and as much as I am weary of how much the removal of a dead letter is being touted as a big win or new progress, I do not wish to be misunderstood: come March 8th, I will be voting Yes.

The sentiments of Article 41.2 are reflective of an older Ireland, a less equal one – an Ireland in which gender roles and family dynamics were rigid, unshakeable, and founded on totally antiquated, patriarchal ideals. Over the years, it has become a bit of a dead letter, but nevertheless it’s retention in our Constitution is simply not acceptable and certainly not reflective of the ideals of the more progressive Ireland we live in today and the ideals we’re continuing to strive towards.

Orla O’Connor, director of the National Women’s Council, perhaps said it best when she commented that a Yes vote “won’t change women’s lives” but “a No vote would be truly retrograde” – if Article 41.2 is an old relic in the back of the closet of the Irish Constitution, perhaps it’s time for some spring cleaning and for the State to fulfil their “duties to the home”.