The upcoming referenda in March on gender and the family explained

Two referenda regarding gender and the family will take place on March 8, 2024, International Women’s Day. The Government approved the wording for the two proposed changes to the 39th Amendment of the Constitution (The Family) Bill 2023 and the 40th Amendment of the Constitution (Care) Bill 2023 on December 7.

The first of four changes would be deletion in its entirety of article 41.2: “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.

“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.”

This article has long been criticised by a range of groups, including the joint committee on gender equality, with committee cathaoirleach Labour Party TD Ivana Bacik saying: “It has long been agreed that the way in which women and mothers are referred to in article 41 is based on outdated gender stereotypes and should have no place in a constitutional text.”

The second proposed change is to article 41.1, which currently reads: “The State recognises the family as the natural primary and fundamental unit group of society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.”

The proposed changes would see nine words added, making it: “The State recognises the family, whether founded on marriage or on other durable relationships, as the natural primary and fundamental unit group of society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.”

The third proposed change is an addition to Article 41.3, which currently reads: “The State pledges itself to guard with special care the institution of marriage, on which the family is founded, and to protect it against attack.”

The Government is proposing removing the words “on which the family is founded”, leaving the wording as just: “The State pledges itself to guard with special care the institution of marriage, and to protect it against attack.”

Both of these changes have been proposed to acknowledge that there are many different types of families outside of the traditional two married parents and children, and to ensure that single parents and unmarried parents among other types of nontraditional families are recognised and given equal treatment.

Fourthly, an entirely new article, article 42B, would be added, stating: “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.”

Cork’s only female TD, Social Democrats leader Holly Cairns, told The Echo: “The removal of anachronistic language from the Constitution in relation to a woman’s role in the home and the expanded definition of family is long overdue.

“However, we have concerns that the proposal on care is not as ambitious as it should be. The language lacks substance and limits constitutional protection of care to care within families — and not the wider community, as recommended by the Citizens’ Assembly on Gender Equality.

“Referendums should not be merely symbolic — changes to our Constitution should have legal weight and be of practical support.

“The Social Democrats are examining the wording of the referendums and will consider putting down amendments to the legislation if necessary.”

The news was welcomed by civil society organisations who between them cover topics such as gender equality, family, and carers, though they noted that the wording didn’t go as far as recommended by the report of the joint committee.

One such organisation is Treoir, the national information service for unmarried parents, those who are not married to each other, solo parents, single parents, parents who are cohabiting or those who are sharing custody.

It also offers support on kinship care for family members who take over caring for a child, and a young parents support program.

Treoir communications officer Sinead Murray told The Echo that the referenda are very important to them, saying: “There’s a lot of issues around the fact that unmarried parents do not have the same rights as married parents.

“Unmarried fathers don’t have an automatic right to guardianship, cohabitating couples not entitled to widow’s pension even if they are clearly in a committed, loving, family dynamic.

“It’s important for us that the government expand what the family means, this new wording could be really important — durable relationships could apply to cohabitating parents, siblings or grandparents taking care of a child, or lone parents, recognising them as a family unit.

“The other aspect is the care piece, which could be very important for kinship carers, they suffer a lot of issues around getting adequate support from social welfare when they take over care of a child.”

She explained that the organisation are still assessing their position on the wording that has been published, as they are a membership-based organisation so need to talk to their members.

They are also getting legal advice to help them ascertain what impact the proposed changes would have.

However, Ms Murray added: “It is an important acknowledgement that Irish family life has drastically changed over the last few decades, compared to when it was written — now over 40% of children are born outside of marriage, and it is increasing every year, so we need to have a more flexible constitution.

“There are lots of different types of families now, stepparents, foster families, same sex couples; Irish family life has diversified in a huge way, but the important part about a family is the love and care between them.”

Sharing an example of why the current wording needs to be amended, she mentioned the Supreme Court case John O’Mara v the Department of Social Protection.

John and his partner Michelle were together for 18 years, and though they never married, they had three children and a mortgage together, they both worked and paid tax.

Sadly, Michelle passed away from covid in 2020, and when John applied for widow’s pension and bereavement grant, it was denied on the basis of the constitution.

“It’s about a financially significant weekly payment for his children who just lost their mother but also a symbolic recognition, the state was saying that their family wasn’t a family,” Ms Murray explained, saying that there will be a ruling in the new year.

“There’s a lot of misconceptions around the referendums. A lot of people don’t know that some families aren’t treated the same, and the families themselves don’t know until it happens to them.

“Finding out you are not going to be supported and not even recognised as a family unit, it could happen to anyone, we also often talk to fathers who don’t realise they have no legal rights in relation to their children until there’s a breakup or conflict.

“A lot of people were surprised by the term ‘durable relationships’ but there’s a flexibility there, lots of people know of a lone parent family or a family sharing custody, or someone who was taken care of by another family relative at some point, or stepparents and blended families; when you think about all the different types of families, it’s important to have an inclusive word to allow for flexibility.”

Ms Murray added that compared to the last two referenda this one can be trickier to get one’s head around, so she said: “I think it’s going to be really important that there’s good, clear information available.”

She added that anyone struggling with any of the issues mentioned above could get in touch with the organisation at treoir.ie or on 01 6700120.

In Cork, female councillors welcomed the news of the referendum, and encouraged people to vote in favour of the updated wording.

Deputy Lord Mayor of Cork Green Party councillor Colette Finn told The Echo: “I am very pleased that article 41.2 is to be deleted. It was a very narrow view of what women have to contribute to society.

“I am pleased with the expansion of the definition of the family to include durable relationships as well as marriage - real people have different relationships but no less valid because they are not married.

“I understand that marriage underpins a significant commitment between two people. However, people do choose not to get married and their relationships are no less worthy for that.

“I welcome the addition of the new article which values the care within the home. This can be provided by any sex. We all need care, and that unpaid care is the very bedrock of a well-functioning society.”

She added: “I would like to see paid care being valued and remunerated at a much higher level than at present. This new article should see a recalibration of paid care in the future.”

Fine Gael councillor Caroline Cronin told The Echo: “The gender equality referendum is a great opportunity to ensure fairness and equal opportunity for all, regardless of gender.

“Supporting this referendum shows our commitment to creating a more inclusive world — it’s important that we work towards a society where everyone can thrive and contribute fully.

“I would encourage everyone to vote in favour of gender equality for a more just and fair future for everyone.”

Fellow Fine Gael councillor Úna McCarthy added: “The overarching aim of the referendums is to update our Constitution to reflect the values of a modern, inclusive Ireland. Words are important.

“One amendment will recognise the value of the care and support which family members give to one another and which is a foundation for solidarity and cohesion within our society.

“The other will make it clear in our Constitution that the family extends beyond the marital family and includes one parent families and cohabiting couples and their children.

“In the past, non-marital families — and single mothers, in particular — were discriminated against and made to feel like they were not a full part of our society. Thankfully, we have grown as a society.

“The amendments seek to ensure that our Constitution reflects our commitment to a modern Ireland which is equal, caring and inclusive and I very much look forward to hearing and participating in all the debates around these issues — I expect that these are issues that everyone will engage with because they pertain to each and every one of us.”