Article 41.2 and the Problem with Formal Equality
Ámhra Carey
Introduction
This article responds to the Government’s proposed amendments to Article 41.2 of the Constitution, drawing on feminist legal scholarship in arguing that the changes, gender neutralising the provision in pursuit of formal legal equality, are ineffectual and counterproductive. It will first set out a brief overview of Article 41.2, its history, and the proposed amendments, then turn to theoretical criticism of legalistic formal equality, and how they apply to Article 41.2.
History of Article 41.2
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° 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.
Article 41.2 has always been controversial, the subject of Dáil debates and attempted amendments before its passage.[1] Women’s groups and opposition politicians argued it was backwards and would undermine women’s rights. De Valera defended the provisions as a protection for women, and a ‘tribute to the work that is done in the homes as mothers’.[2] He stated it was not supposed to weaken women’s rights or women’s choices, but to recognise women who chose to live their lives in a particular way. The question of whether the provision was intended to provide or guarantee some sort of financial assistance to mothers or women in the home was left open.[3] While the Article has been criticised for using the word ‘endeavour’,[4] meaning there is no clear obligation on the state to act, it is notable that the Article was excluded from the non-justiciable provisions of Article 45, suggesting that it was envisaged that it may provide the basis of litigation.
While the Article is justiciable, it has come to be regarded as a ‘dead letter’ of the constitution. In L v L,[5] Barr J in the High Court found for the plaintiff, applying the provision to override a rule of inheritance law which required financial contribution from a spouse to inherit the family home. Barr J held that this rule elevated financial contributions above housework in a manner inconsistent with Article 41.2. However, the Supreme Court overruled this, concentrating on the traditional development of property law, and citing the separation of powers, and the need not to veer into law making. Cahillane has noted that this Supreme Court was entirely made up of middle-aged or older men who were likely the sole owners of their property, and for this reason, the plaintiff’s legal team was not confident in their success on appeal.[6] In Sinnott v Minister for Education,[7] the majority of the Supreme Court denied the application of Article 41.2 to justify an award of damages to the plaintiff due to a breach of her constitutional rights as carer in the family, however, they did leave the application of Article 41.2 to award damages open to a future ‘appropriate case’. In this case, Denham J delivered a strong minority judgment, reading Article 41.2 in light of modern Irish values to find for the plaintiff and award damages:
Article 41.2 recognises the significant role played by wives and mothers in the home. This recognition and acknowledgement does not exclude women and mothers from other roles and activities. It is a recognition of the work performed by women in the home. The work is recognised because it has immense benefit for society.[8]
In DT v CT,[9] Murray J took a similar approach by interpreting Article 41.2 as a ‘contemporary document’. In this case, he interpreted the provision as potentially applying to work done by men in the home. While this interpretation has been criticised by Cahillane,[10] it shows the potential for courts to read the provision in light of modern values.
There are a few notable exceptions to the trend of the provision having little effect, where it was interpreted to justify ‘positive discrimination’ towards women. In Dennehy v Minister for Social Welfare[11] Barron J upheld a social welfare provision that discriminated against deserted husbands versus deserted wives, citing Article 41.2, and referring to the underlying reality that men were more likely to work outside the home to support themselves than women. On the same grounds, in Lowth v Minister for Social Welfare,[12] the Supreme Court upheld a provision which entitled women, but not men, to lone parent welfare support.
Criticism and Amendment of Article 41.2
The provision has come under significant criticism as an ‘archaic and sexist’[13] relic of conservative Ireland which is constitutionally ineffective. The Irish Human Rights Equality Commission’s report on the Article notes the potential for the provision to perpetuate ‘stereotypical attitudes towards the role of women in Irish Society’.[14] Whyte has observed that while the provision has not been explicitly cited to justify sexism and discrimination by the courts or Oireachtas, it is reflective of the system of values that permeated Irish society.[15] Scannell, argues that the provision may be read, either as a tribute to women and the work they do in the home as mothers, or as an offensive form of sexual stereotyping.[16] In light of this criticism, the Article has been reviewed a number of times over the years, recently by a citizens’ assembly which recommended changes that would gender neutralise the provision, and provide for wider and more justiciable recognition of care work generally within society.[17] A joint Oireachtas Committee then examined the work of the citizen’s assembly, making further recommendations.[18] The government subsequently proposed a set ofamendments to the constitution, including one to Article 41.2.[19]
The government proposal involves deleting Article 41.2, and replacing it with a new Article 42 B, which reads as follows:
The State recognises that the provision of care, by members of a family to one another by reason of the bonds that exist among them, gives to Society a support without which the common good cannot be achieved, and shall strive to support such provision.
The use of ‘strive’, instead of ‘endeavour’, does not meaningfully increase justiciability, furthermore, the proposal limits the provision’s effect to within the family. Therefore, he government has not followed the recommendation of the citizens’ assembly to replace Article 41.2 with language that ‘obliges the State to take reasonable measures to support care within the home and the wider community’.[20] The proposed amendment will have little effect outside of gender neutralising the provision, removing specific reference to women or mothers, in favour of ‘members of a family’. This amendment has already attracted extensive criticism from constitutional law commentators, with Cahillane stating the Government has ‘completely fudged an opportunity to do something positive’.[21] O’Mahony has argued that the amendment is effectively ‘replacing a sexist dead letter with a gender-neutral dead letter’.[22] Also notably absent from the proposed amendments is a specific provision on Gender Equality, which was recommended by the joint Oireachtas Committee,[23]Varadkar justified this omission, on the basis that it could undermine the existing general constitutional equality guarantee.[24] While the gender-neutralisation was recommended by the citizens’ assembly and constitutional convention,[25] I will argue that this is merely ‘formal’ equality that is substantively counterproductive, and ineffectual in promoting equality or social change. I will argue that the government proposals are not merely a dead letter, but a regression of our constitution’s potential to support gender equality.
Criticisms of Formal Equality and the Proposed Amendment
Theoretical criticisms of the formal, legalistic equality embodied by the government’s proposed amendment will now be considered. In this regard, Naffine’s criticism of gender neutralising rape laws is poignant: she criticises Australian laws which removed gender from the crime of rape, because, ‘rape occurs in a society in which it is men who rape women, not women who rape men’.[26] Naffine argues that the retention of gender specific rape crimes serves to highlight the sexist injustice of our society, and that gender neutralising the crime serves to obscure the underlying reality. While rape is a crime that affects all genders, and the law should account for this, we should not write reality out of the law in attempting to do so.
Similarly, gender neutralising 41.2 adopts a formalistic conception of equality that ignores the underlying reality. Women still bear a highly disproportionate burden of work in the home in Ireland, spending double the amount of time men do on caring and housework.[27] Removing references to gender in Article 41.2 will not change this, and it gender neutralises an issue which is not gender neutral. Men increasingly take on work in the home, and this should not be ignored, however, the overriding societal issue is the inequality women have faced due to their relegation to life in the home, and their ongoing shouldering of a ‘double burden’ of housework. Article 41.2 facilitates a recognition of the disproportionate amount of work done by women in the home, and while it has had little effect in this regard, due to failures of Government and interpretation, it is counterproductive to remove it. Recognition of the work done by other genders in the home is also desirable, however, this does not require derecognising the work of women, as demonstrated by Murray J in DT v CT.[28]
Finley is highly critical of the gendered nature of legal reasoning and language.[29] In particular, the adoption of a ‘discrimination’ based approach to equality by the law, wherein the political and historic context of oppression and domination that makes up inequality is lost to a supposedly neutral ‘discrimination’ wherein equality is understood as equal treatment regardless of historic or ongoing oppression. Therefore, we understand all discrimination,‘no matter what its historical impetus and purpose, and no matter whether it contributes to or helps reduce domination and oppression, to be forbidden discrimination.’[30] She is critical of the law’s tendency to neutralise, and to treat ignorance of historical context as neutrality. She is critical of the male perspective which law and legal reasoning take on, which is couched in terms of neutrality. She also criticises the understanding of work that labour law adopts, as merely work done outside the home.
The amendments ‘neutralise’ the Irish constitution and blind the document to historic and ongoing realities of oppression. This means that future beneficial treatment towards women to address oppression is less constitutionally justifiable, as the constitution takes on a gender-neutral stance. Finley’s criticism of the male perspective in legal reasoning is not addressed or solved by neutralising the provision: the male perspective is as present as ever, with the law seeking to insert neutrality to historic oppression as the solution to said oppression. While the current provision was reflective of sexist attitudes in Irish society, it can be reinterpreted, such as along the lines of Denham J’s interpretation, to subvert this, and instead be read as recognition of women, and the inequality they face. For instance, it could be used to reinterpret the meaning of labour, to take account of the work disproportionately done by women, which does not fall within labour law.[31]
Scales’ approach is similar,[32] arguing for adjudicating equality not through ‘discrimination’ but based on discerning between occasions of respect and occasions of oppression in treatment, allowing for differing treatment in positive situations. She borrows from MacKinnon, who argued that the test should be whether a policy contributes to the oppression of a class of people based on gender status.[33] Scales, in answering the objection that this approach could reinforce harmful stereotypes, seeks to find a reliable approach to ‘generalisations which are largely true’.[34] She states, ‘injustice does not flow directly from recognising differences; injustice results when those differences are transformed into social and economic deprivation’.[35] She argues that disadvantage is self-replicating without intervention, and that therefore ‘beneficial classifications seem necessary to the ultimate undoing of stubborn stereotypes’.[36]
Scale’s reasoning addresses the main criticism of Article 41.2, the perpetuation of harmful stereotypes. The stereotype of women working in the home more than men is true: it is an underlying inequality that contributes to social and economic deprivation, and the best way to address this is not to ignore or write from history the deprivation, but to acknowledge it legally, and implement beneficial classification. In this instance, the provision of financial assistance to those negatively affected by the historic and ongoing discrimination and stereotyping.[37] In the context of Article 41.2, this might be a constitutional entitlement to free/subsidised childcare facilities in the workplace for women, greater maternity leave entitlements or reallocation of rewards in the workplace. As Scales states, ‘this redistribution of historical burdens and benefits may seem a sweeping remedy, but it is the only one which addresses the reality.’[38] Writing out the history of sexism from our constitution does nothing to address inequality, but constitutionalising a recognition of the unequal burden which women shoulder allows for the provision of assistance to women that addresses the reality of discrimination and sexism. The amendments in their current form risk regressing the constitutional position and make programs like these subject to challenges based on discrimination against men, removing a potential constitutional defence for such schemes under 41.2. This is not a hypothetical result of 41.2, as noted above, the case law has borne out such an effect.[39] The failure to include a specific gender equality provision, as noted above, also makes such schemes less constitutionally defensible.
This amendment removes the capacity of the Article, as it stands, to promote social change and equality: while 41.2 is currently a ‘dead letter’, there is potential to reinterpret it considering modern values and diverging case law, to promote true equality. An amendment that removes the normativity in Article 41.2 would also be preferable, replacing the ‘life of woman in the home’ with something like the ‘unequal burden of work in the home shouldered by women’, justiciability could also be improved, for instance, by replacing ‘endeavour’ with ‘guarantee’. Instead, the government has eschewed this, along with the advice of the citizens’ assembly, and proposed a counterproductive amendment.
Conclusion
Article 41.2 has a complicated and problematic history, both in drafting and in its interpretation by the courts, however, there is a more positive interpretation of the provision available, which has been neglected in favour of amendment. The proposed amendments to Article 41.2 are problematic: they obfuscate underlying oppression, adopt a ‘neutral’ and ahistorical stance to an issue that demands historical perspective, and undermine schemes that could address inequality. Reinterpreting the existing provision in line with modern values and substantive equality, is preferable to the proposed changes. Amending Article 41.2 in a different manner, to promote justiciability and substantive equality, would be the best outcome for the provision.
[1] Laura Cahillane, ‘Revisiting Article 41.2’ DULJ 2017 40(2) 107
[2] Dáil Deb 11 May 1937, vol 67, col 677.
[3] Laura Cahillane, ‘Revisiting Article 41.2’ DULJ 2017 40(2) 107, 8.
[4] Dáil deb 2 June 1937, vol 67, col 1596.
[5] [1992] 2 IR 77
[6] Laura Cahillane, ‘Revisiting Article 41.2’ DULJ 2017 40(2) 107, 11.
[7] [2001] 2 IR 545
[8] ibid 665.
[9] [2002] IESC 68.
[10] Laura Cahillane, ‘Revisiting Article 41.2’ DULJ 2017 40(2) 107,13.
[11] (HC, 26 July 1984)
[12] [1993] IR 339, [1998] 4IR 321.
[13] Deputy Roderic O’Gorman described the provision in these terms when introducing the amendments in the Dáil; Dáil deb 14 December 2023, vol 1047, col 879.
[14] Irish Human Rights and Equality Commission, ‘Policy Statement on Article 41.2 of the Constitution of Ireland’ (2018)
[15] Convention on the Constitution, Second report of the Convention on the Constitution, (2013) 11.
[16] Yvonne Scannell, ‘The Constitution and the Role of Women’ in Brian Farrell (ed), De Valera’s Constitution and Ours (Gill and MacMillan 1988)
[17] Report of the Citizens’ Assembly on Gender Equality (2021)
[18] Joint Committee on Gender Equality, Unfinished Democracy: Achieving Gender Equality (Final Report, December 2022)
[19] Government Press Release, ‘Government Approves Proposals for Referendums on Family and Care’< https://www.gov.ie/en/press-release/c9193-government-approves-proposals-for-referendums-on-family-and-care/# > accessed 11th December 2023.
[20] Report of the Citizens’ Assembly on Gender Equality (2021) 53.
[21] Jack Horgan-Jones, Mary Caroilan and Pat Leahy, ‘Civil society groups to “consider” approach to referendums over wording on care’ (The Irish Times 6 December 2023) < https://www.irishtimes.com/politics/2023/12/06/civil-society-groups-to-consider-approach-to-referendums-over-wording-on-care/ > accessed 23 December 2023.
[22] Conor O’Mahony, ‘Referendum will just replace a sexist dead letter with a gender-neutral dead letter’ (The Irish Times 6 December 2023) < https://www.irishtimes.com/opinion/2023/12/06/governments-big-idea-is-to-replace-a-sexist-dead-letter-with-a-gender-neutral-dead-letter/ > accessed 23 December 2023.
[23] Joint Committee on Gender Equality, Unfinished Democracy: Achieving Gender Equality (Final Report, December 2022)
[24] Shawn Pogatchnik, ‘Ireland to vote on valuing women outside “the home”’ (Politico December 5 2023) < https://www.politico.eu/article/referendum-ireland-to-vote-on-valuing-women-outside-the-home/ > accessed 23 December 2023.
[25] Convention on the Constitution, Second report of the Convention on the Constitution, (2013) 6.
[26] Ngaire Naffine, ‘Possession: Erotic Love in the Law of Rape’ 57 Mod. L. Rev. 10 1994
[27] Economic Social and Research Institute ‘Caring and Unpaid Work in Ireland’ (2019)
[28] [2002] IESC 68.
[29] Lucinda M. Finley, 'Breaking Women's Silence in Law: The Dilemma of the Gendered Nature of Legal Reasoning' (1989) 64 Notre Dame L Rev 886
[30] ibid, 891.
[31] Judy Fudge, ‘Feminist Reflections on the Scope of Labour Law: Domestic Work, Social Reproduction and Jurisdiction’ (2014) Feminist Legal Studies, 22.
[32] Ann C. Scales, 'The Emergence of Feminist Jurisprudence: An Essay' (1986) 95 Yale LJ 1373
[33] Catharine A. MacKinnon, ‘Feminism, Marxism, Method and the State: Toward Feminist Jurisprudence’ (1983) Summer Vol. No.4,
[34] Ann C. Scales, 'The Emergence of Feminist Jurisprudence: An Essay' (1986) 95 Yale LJ 1373
[35] ibid, 1396.
[36] ibid, 1396.
[37] Scales also suggests this in her work in the context of employment.
[38] Ann C. Scales, 'The Emergence of Feminist Jurisprudence: An Essay' (1986) 95 Yale LJ 1373
[39] Dennehy v Minister for Social Welfare (HC, 26 July 1984); Lowth v Minister for Social Welfare [1993] IR 339, [1998] 4IR 321.