Siobhán Mullally is Established Professor of Human Rights Law, and Director of the Irish Centre for Human Rights at the School of Law, University of Galway.
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In reflecting on the upcoming ‘care referendum’, many of us have questioned why the Government decided not to follow the recommendation of the Citizens Assembly to replace the sexist, harmful language of Article 41.2 with a positive obligation to support care work in the family and the wider community. Instead what we are now presented with, is a proposed constitutional text that recognises only the provision of care by members of a family to one another, deliberately rejecting an opportunity to recognise care as a public good.
An insight into the Government’s position can be found in the differing views expressed by the Supreme Court in the landmark Sinnott v Ireland case, a case that was taken by Jamie Sinnott, a young man with autism, and joined by his mother Kathy Sinnott. Kathy Sinnott arguedthat the state’s failure to provide free education facilities appropriate to the needs of her son, had imposed inordinate burdens on her as a single parent and full-time mother. The State’s failure to protect her son’s rights, she argued, also breached her constitutional rights as the primary carer, violating Article 41.2. of the Constitution.
Chief Justice Keane, giving judgment on behalf of the majority of the Supreme Court, rejected her arguments, however. While her position, he said, evoked “respect, admiration and compassion”, these were not grounds in law for any award of damages.
Essentially, the majority of the Supreme Court in the Sinnott case acknowledged the work undertaken by Kathy Sinnott, but refused to acknowledge any rights arising from her role as a carer. Justice Susan Denham (later Chief Justice Denham), in a strong dissenting judgment, attempted to rescue Article 41.2, which she argued, did not assign women to a domestic role, but rather sought to give recognition to the work performed by women in the home. In this case, she concluded, the state had failed to give due recognition to the work performed by Kathy Sinnott as a carer, work that was of “immense benefit for society”.
Justice Denham’s arguments stand in marked contrast to the reluctance of the majority of the Court to give legal recognition to the work of carers. The transformative potential of rights was blocked by a deeply gendered division between the public and the private spheres and a presumption that the tests of justice do not extend to the care work undertaken primarily by women.
It is a presumption that we see reflected again in the proposed amendment, which though not gender specific, returns us to a deeply gendered presumption that care takes places within the family.
The enactment of 1937 Constitution posed a tragic dilemma for feminists. It marked a break away from the Free State that had been in existence since 1922. For women, however, it failed to fulfil its promise of equality and rights. The depiction of the self-sacrificing mother as an emblem of Irish nationalism has consistently limited the transformative potential of rights, and of a feminist ethics of care. By 1937, women’s political, economic and reproductive rights, had been so severely curtailed that women were explicitly barred from claiming for themselves a public identity. Hanna Sheehy-Skeffington was one of the most vocal opponents of the 1937 Constitution. The 1916 Proclamation of Independence, she said, had given Irish women “equal citizenship, equal rights and equal opportunities”. Subsequent constitutions had “filched these” or “smothered them in mere empty formulae”. Sadly, as disability rights and social justice advocates highlighted, the proposed constitutional text on care, risks becoming yet another empty formula, another moment of exclusion.
As we rush to the polls on International Women’s Day, a day that is about activism for equality and rights, we would do well to recall the words of feminist philosopher, Iris Young – ‘the totalising moment always leaves a remainder’. By scheduling the referendum on March 8th, the Government presumed that we would forget that feminist struggles are about more than sexist language. Feminist struggles are also about justice, care, and equality, for all, and about building and mobilising for a supportive state.
In a deeply unequal society, we cannot afford to squander this opportunity to fix our constitutional text. What should have been an opportunity to place a feminist ethic of care firmly into the constitutional text, has instead become a moment of exclusion, retrenching a gendered division between public and private care.
I am confident that the sexist, harmful language of Article 41.2 will, in the future, be fixed. It has embarrassed successive Governments appearing in the hallowed halls of UN buildings, provoking strong criticism and not a little ridicule from UN equality and human rights bodies. It rightly provokes anger and disbelief among young Irish women, many of whom will vote for the first time on March 8th. I am not so confident, however, that a future Government will fix our continuing failure to recognise the universal vulnerability of the human condition, and commit to supporting the public good of care work – in families and communities. I look forward to a time when sexist, harmful language is removed from the Irish constitution. However, as Audre Lorde said, “There is no such thing as a single-issue struggle because we do not live single-issue lives”.
Irish Centre for Human Rights 