The Evolution of The Role of Women: A study of Article 41.2 of Bunreacht Na hÉireann

“The day will come when men will recognize woman as his peer, not only at the fireside, but in councils of the nation…” -Susan B. Anthony

Article 41.2 of the Irish Constitution has long been a subject of debate within the context of its development. Heralded originally as perhaps a nod to the work and role of the woman within the home, and the positive benefits that work brought upon the State, as Irish society developed, so too did questions about the exact nature of this provision and its place in a 21st century Ireland. Does Article 41.2 really provide an acknowledgment to the years of work in the home delegated to women, does it offer a form of economic protection to them, or rather is it now no more than an example of the paternalistic ethos that once clouded not only the Irish legal and political landscape but also the entirely of Irish society? Each of these questions have been answered – albeit vaguely, in some instances, but the point still stands.   

From the beginning, the wording of Article 41.2 posed a concern to women’s groups, who feared that it would be used to justify discrimination against women. This suggestion was refuted by then Taoiseach Eamon De Valera – whom, it has been suggested, advocated for a constitutional provision relating to women in the home following his own childhood experiences [see reference 1]. However, Ireland was not the first country to adopt such a provision, in fact it was standard at the time across Continental Europe. Both the 1921 Polish Constitution and the Czechoslovak Constitution of 1920 included similar provisions. Despite this, the criticisms never went away.

2001 saw the case of Sinnott v Minister for Education [see reference 2], wherein Article 41.2 was again defended, this time by Mrs Justice Denham. According to her judgment, the provision did not assign women to a specific domestic role, but rather recognised the role of the woman within the home and did not endeavour to exclude them from pursuing other roles. In this light, the constitutional protection of the role of women in the home was just that – recognition. 

The decision of the 1992 case L v L [see reference 3], wherein in rejecting the claim of entitlement to the family home made by a woman who carried out most of the responsibilities within it, the Supreme Court highlighted, perhaps inadvertently, the State’s lack of engagement with the provision. According to the Court, in order to have a claim upon the family home, one should show that they financially contributed to it. This directly contradicted Article 42.2, whereby the State has an obligation to ensure that the woman does not have to neglect her duties within the home to partake in labour. Following on from that, it must be noted that since the enactment of such a provision, that no form of compensation for the work carried out by the woman in the home has been offered – essentially, making the provision completely ineffective. 

The notion of reforming Article 41.2 has been around since 1996, when the Constitutional Review Group acknowledged the historical developments of women in society. Flowing from the abolition of the marriage bar of the 1960s, more women were working outside the home, and the Review Group felt this should be reflected by amending the provision with gender-neutral wording [see reference 4]. Fast forward to 2013, where a government taskforce was established to consider further recommendations for the provision. 

The taskforce returned with three possible options for the provision, characterised by a Joint Oireachtas Committee in 2018 as ‘paternalistic and sexist’. These options provided for its total deletion; its deletion and replacing with a gender-neutral acknowledgement of the social benefits of a family; and the retaining of most the provision but with an additional acknowledgement of carers in the home and wider community. A further option was suggested by Laura Cahillane [see reference 5], proposing that the provision be retained, and the State fulfil its obligation in providing support for women who chose to stay within the home.

These proposals were hopeful – reflecting an Ireland much changed from the one wherein women were expected to remain within the home and prevented from making that choice for themselves. They were reflective of a society attempting to achieve gender equality, acknowledging that women could simultaneously contribute to society both inside the home and outside of it. They rebutted the presumption of a ‘one-size fits all’ family and endeavoured to restore the right of choice to women – the right to choose their own role in society.

In 2021, the Citizens’ Assembly voted to delete Article 41.2, and replace it with a non-gender specific provision, imposing an obligation on the State to put in place measures supporting care within the home and wider society. This is a most welcome development in the law, encompassing the evolution of the role of the woman in Irish society since the drafting of the Constitution of Ireland. It is not yet known when this recommendation will be adopted, but it provides a great deal of hope for the future of women in this country. 

The role of the woman has evolved from a role confined to the home by patriarchal influences, to a stark reminder of the treatment of women in the past, to a wide societal understanding that the place of a woman is wherever she may choose it to be. Of course, it is a role that is always in motion, a role in constant evolution, but for now, it is simply enough that it is recognised in Irish law, as a role of her own making. 

References:

[1] Tim Pat Coogan, De Valera: Long Fellow, Long Shadow (Hutchinson, 1993) 497.

[2] Sinnott v Minister for Education [2001] IESC 63; [2001] 2 IR 545.

[3] L v L [1992] 2 IR 177 (SC).

[4] Constitution Review Group, Report of the Constitution Review Group (PN 2632, Stationary Office 1996) 296. 

[5] Laura Cahillane, “Revising Article 41.2” (2017) 40(2) Dublin University Law Journal 107.