The Oireachtas Joint Committee on Justice and Equality was requested by the Taoiseach to consider the General Scheme of the 38th Amendment of the Constitution (Role of Women) Bill in terms of pre-legislative scrutiny. Article 41.2.1º of the Constitution provides: “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.” Analysing the history of the provision, the Committee recognised that it was largely symbolic and has had little practical value, but that the dominant view was that it is desirable to amend or repeal it on account of its patriarchal and stereotyping nature. The Committee considered that the only avenue forward was to decide whether to delete the article simpliciter or replace it with alternative wording that is more appropriate to the present day and that reflects the value and recognition that society wishes to place on the role of carers in society. The former would bring legal certainty but the latter could arguably achieve a greater societal role. The Committee took the view that replacement with alternative wording was the most appropriate means of reform. In light of some disagreement over whether the alternative wording should be merely symbolic or involve entrenchment of meaningful socio-economic rights, the Committee proposed two options. The first proposal included draft wording which contained gender-neutral language. The second proposal recommended further dialogue and public consultation on the role and value of care work. As of 2022, there has been no change in the "role of women" constitutional provision.
Women and Justice: Keywords
Reports
Article 41.2.1º of the Constitution provides: “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.” This report was one of several conducted to examine the wording of Article 41 of the Constitution with a view to recommending whether any amendments were necessary by way of a referendum. The Task Force was established by the Minister for Justice and Equality and was charged with collaborating with other government departments and the Office of the Attorney General, with a view to completing its tasks so that the Minister could report back to the Government on the issues arising in relation to Article 41.2. One of its main tasks was to examine proposals made for the amendment of Article 41.2 to find the most appropriate wording to present in a forthcoming referendum, and to consider cost implications of such proposals. The Task Force concluded by making two alternative recommendations. The first is to replace the existing text of Article 41.2.1º with a provision which would read along the lines of the following: “The State recognises that home and family life gives to society a support without which the common good cannot be achieved. The State shall endeavour to support persons caring for others within the home as may be determined by law.” The second is to replace the text of the Articles 41.2.1º and 41.2.2º with the following: “The State recognises that home and family life gives to society a support without which the common good cannot be achieved.” This would be followed by another provision, reading: “The State shall endeavour to ensure that persons caring for others in the home and in the wider community receive support in recognition of the contribution they make to society.” In sum, the Task Force recommended that the Department of Justice and Equality, in consultation with the Office of the Attorney General, further examine recommendations that the Constitution as a whole be amended to express gender-neutral language throughout the text. A 2018 report from the Oireachtas (available here) examined these provisions and produced similar conclusions and recommendations. As of 2022, no constitutional referenda on any of these matters have been put to the people since the publication of the report.