Referendums on gender equality failed

09. March 2024

Following a citizens' assembly on gender equality in Ireland, two constitutional amendments on the redefinition of family and on care were rejected by a majority of voters in referendums on 8 March 2024. 67.7 per cent were against changing the definition of family. An amendment to the constitutional article on care work was rejected by 73.9 per cent. The turnout was 44.4 per cent.

The first 'family' referendum, if it would have been approved, would have update the 39th Amendment of the Irish Constitution to "expressly provide for a wider concept of the Family" by inserting new text "referring to the Family whether founded on Marriage or founded on other durable relationships."

The second 'care' referendum, if it would have been approved, would have repealed Article 41.2 of the Constitution, which refers to the life of woman in the home. It would have inserted a new Article recognizing that "the provision of care, by family members to each other 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."

"Women carried a disproportionate share of caring responsibilities"

When the referendums were first announced on 8 March 2023, Taoiseach Leo Varadkar said that for too long “women and girls have carried a disproportionate share of caring responsibilities, been discriminated against at home and in the workplace, objectified or lived in fear of domestic or gender-based violence”.

Critics had argued the proposals’ wording and lack of legislative scrutiny and warned of unintended effects. Some worried that widening the definition of family could affect rules on tax and citizenship. Others said the proposal to spread the burden of care for family members with disabilities to the entire family from only the woman became a row about the extent or willingness of the state to support carers. Instead, care outside the family and by the state should also be recognised and promoted. The Labour leader, Ivana Bacik, said the government had ignored alternative wording proposed by the legislature’s gender equality committee and then ran a lacklustre campaign.

Critics: wording did not go far enough

The Citizens' Assembly on Gender Equality had voted in 2022 in favour of choosing a gender-neutral wording that is not just symbolic but actually has a meaning. Therefore, the Citizens' Assembly had proposed wording that would oblige the state to take adequate measures to support domestic and family labour, drawing on similar wording from the Constitution of South Africa. A parliamentary committee set up to scrutinise the proposals had agreed to this wording.

According to constitutional law expert Prof Laura Cahillane, the constitutional amendment formulated by the government was "a disappointment for all those who had pushed for reform". It is true that the sexist wording had been replaced and the implicit statement that women belong in the kitchen had been removed. However, even the new wording would not have obliged the state to provide support to people who take on domestic and family work.

Discretionary powers for decision-makers

"Even after the referendum, these people cannot expect to be compensated with benefits or rights for their important work," Cahillane said before the referendums. Irish people had basically just be asked if they wanted to replace an ineffective clause with outdated and patronising language with a new ineffective clause with slightly more acceptable language.

Prime Minister Leo Varadkar, however, was not sure whether the wording on care work proposed by the Citizens' Assembly is stronger than the constitutional amendment motion tabled in the referendum. "You have to leave some discretion to the people you elect to decide how resources are allocated, how the money is spent, because if you put everything in the constitution, it’s actually the courts who will decide, not the people who you elect, and that’s not a good idea," Mr Varadkar said.

"Dismissive treatment of the citizens' assembly"

Deliberative Democracy expert Prof David Farrell wrote at X (former Twitter): "These referendum defeats call into question a number of things, but high among them is the dismissive treatment of the Citizens' Assembly (and the parliamentary comittee on gender equality) by government. Let's not forget, in the case of the women's role/carer referendum, this is the second time that the government summarily dismissed recommendations by a deliberative process involving citizens. The Constitutional Convention (2012-13) was similarly sidelined.

How much money has been wasted in running these poorly designed referendums? How much money was wasted in organising the 2 deliberative processes whose recommendations were largely ignored? How much Oireachtas time/resource was also wasted in this debacle? Not for the 1st time, I ask government to consider this. If you're going to set up a citizens' assembly to discuss an issue then you need to treat its recommendations respectfully. The bit between citizens' assembly recommendations and government decision is opaque and badly run -resulting in the sort of mess we're seeing today".

Lack of information

Citizens' Assembly expert Prof Jane Suiter believes that one of the main reasons for the rejection of the constitutional amendments was the lack of information for those entitled to vote. In an interview with Democracy International, she explained that it was foreseeable that most Irish citizens would follow the logic: “if you don’t know you vote no, because then you get the status quo and you know what the status quo is”. Since the Citizens' Assembly on Gender Equality was held online due to the COVID-19 pandemic, it received too little attention.

Finally, the decision to hold the referendum on 8 March 2024 was made very hastily. Holding the referendums on International Women's Day almost seems like symbolic politics - and not like a very well thought-out procedure, argues Prof Suiter.

45 recommendations of the Citizens' Assembly

The Citizens' Assembly on Gender Equality had submitted a total of 45 recommendations to Parliament on 2 June 2021. In December 2022 the Joint Committee on Gender Equality of the Irish parliament recommended following the recommendations and holding a referendum on the necessary constitutional amendments.

In the Citizens' Assembly, 99 randomly selected citizens had addressed all aspects of gender equality in Ireland. The Assembly was a reflection of Irish society by age, gender and place of residence. Due to the Corona pandemic, most of the assembly was conducted online. Sessions were held between 20 January 2020 and 18 April 2021.

Replace "women's place in the home clause"

The Citizens' Assembly proposes to replace the so-called "women's place in the home clause" in the Constitution with a non-gender-specific wording that requires the state to take appropriate measures to support care work in the home and in the wider community. Article 41 of the Constitution so far reads: "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" and "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".

Citizens' Assembly participants also recommend amending the part of Article 41, which recognises the family as a natural and fundamental unitary group of society as a moral institution. According to the Citizens' Assembly, the family should not be limited to the marital family. It proposes explicit reference to gender equality and non-discrimination in the Constitution.

Improve conditions for carers

Against the background of the Corona pandemic, the Citizens' Assembly calls on the government to improve the conditions for carers. It recommends choice in care and independence for older people and people with disabilities, as well as changes in care allowances and pensions for carers. It also said the government must make a special effort to improve the visibility of male carers.

The Citizens' Assembly also addressed the issue of domestic, sexual and gender-based violence. It calls for gender power dynamics, consensual sexual acts and domestic, sexual and gender-based violence to be addressed in a revised Relationships and Sexuality curriculum . It also proposes the appointment of a Sexual Violence Victims/Survivors Representative to act as an independent advocate and voice for victims/survivors.

Increase the minimum wage

The Citizens' Assembly further calls for the minimum wage to be raised to a living wage level by 2025. Appropriate legislation should reduce the gender pay gap to 9 per cent by 2025 and 4 per cent by 2030 - with the aim of eliminating it by 2035.

A fully individualised social protection system should reflect the diversity of today's lives and promote an equal division of paid work and care.

Hold social media companies accountable

Technology and social media companies should be held to account regarding online content that constitutes sexual harassment, bullying, stalking, sexually violent or abusive content.

On childcare, the assembly has called for a publicly funded, accessible and regulated model of childcare over the next decade. The Citizens' Assembly also recommends that the state increase its share of gross domestic product (GDP) spent on childcare from the current 0.37 per cent of GDP to at least 1 per cent by 2030 at the latest.

Paid parental leave

Paid parental leave should cover the first year of a child's life and be non-transferable, provide lone parents with the same total leave period as a couple and be incentivised by increasing payment levels to encourage increased take up, says the Citizens' Assembly report.

Since none of the Citizens' Assembly recommendations can be implemented without the support of the government, a statutory body for gender equality is to be established and adequately funded. This is to be placed under a ministry that is to be charged with cross-government coordination.

Yes to gender quotas in electoral law

The Citizens' Assembly also had an intense debate on gender quotas in elections. Three quarters of the members support a corresponding change in the electoral law.

Citizens' Assembly members want to see changes soon, says Dr Catherine Day, chairperson of the assembly. The current pace of change is too slow, she says. Many bodies are not representative of Irish society because there are not enough women represented, she said.

"Groundbreaking recommendations"

According to the director of the National Women's Council of Ireland, the Citizens' Assembly has done a great service to Irish women by making "groundbreaking recommendations". The recommendations "send a strong and clear signal to the government that women's equality must be at the heart of our institutions," Orla O'Connor said.

On 15 December 2022, the Joint Committee on Gender Equality of the Irish parliament presented its report and recommendations for a constitutional amendment. The Committee took the view that the 45 Assembly recommendations should be seen as a blueprint for achieving a gender equal Ireland, and so the focus of its deliberations was on how best to secure their implementation.

Call to hold a referendum

In particular, the Committee had developed a precise wording of the text for amending Articles 40.1 and 41 of the Constitution, and called on the Government to hold the necessary referendum in 2023. The proposed changes to Article 40.1 would reflect the Assembly’s wish to see constitutional recognition for the principle of gender equality; and for principles of equality and non-discrimination. The proposed changes to Article 41 would remove the sexist language currently in the text referring exclusively to women and mothers as having a ‘life’ and ‘duties’ within the home.

Instead, the proposed changes would insert gender-neutral language to ensure that the role of care is recognised, valued and supported by the State. The proposed changes would also ensure a more inclusive definition of ‘family’ beyond the family based upon marriage. Amendments to the Irish Constitution must always be decided by the citizens in a referendum.

Recommendations on a range of other measures

Apart from constitutional change, the report also sets out comprehensive recommendations on a range of other gender equality measures; on childcare, care and social protection; on measures to address Domestic, Sexual and Gender Based Violence (DSGBV); on the role that education can play in challenging gendered norms and stereotypes; on the impact of pay and workplace conditions on gender equality; on how to achieve gender equality in leadership, politics and public life; and on how the gender equality principle can be protected through law and policy.

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