Gender Equality Referendum

September 13, 2023

A referendum on the definition of the family and removing the constitutional reference to a woman’s place being in the home is due to be held in November. A referendum is a national vote on a question about a proposed change to the Constitution. The Irish Constitution is a diverse document. It has, at all stages of its existence, been very much a living breathing document. Where other countries' Constitutions contain references to the separation of powers, social justice etc, the Irish Constitution contains a bit more “sex, drugs and rock’n’roll” with articles about blasphemy, divorce, personal rights, abortion and family. These references could be why we are looking at holding our 39th referendum. Some have argued that this could be seen as a sign of weakness of the original document. However, it appears to me that it is, in fact, a sign of an understanding that people’s lives and attitudes change over time and the Constitution needs to keep up.

Article 41.1 states that the family is the “natural primary and fundamental unit group of society”. It then goes on to protect the marital family by guarding “with special care the institution of marriage, on which the family is founded, and to protect it against attack”. Article 41.2 contains a recognition that “by her life within the home, woman gives to the State a support without which the common good cannot be achieved” and endeavours to “ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home”.

The Citizens’ Assembly on Gender Equality, after extensive deliberation, in its final report in June 2021, issued 45 recommendations, including that Article 41 should be amended to extend protection to the family, not limited to the marital family. It also said that Article 41.2 should be deleted and replaced with non-gender-specific language that obliges the State to take reasonable measures to support care within the home and wider community.

The definition of family has long been criticised for limiting protection to the marital family only. This is a highly restrictive definition which does real injustice to the diverse reality of family life. Treoir, a federation formed to improve the quality of services provided to unmarried parents, reported that in 2022 there were 24,754 (more than 40%) of births outside of marriage and this percentage has continued to increase. All of these families need and deserve recognition, support and protection by our Constitution.

In addition, Article 41 of the Constitution has been controversial since soon after its publication in 1937, particularly in relation to the way that women’s status in Irish society was defined. At the time, women’s groups protested outside Leinster House at the way in which the text confined their role to lives within the home. This language was adopted at a time when a marriage bar required women to resign from workplaces upon marriage. Almost 90 years later, the definition of the family and women’s role in the home has lost meaning in the context of 2020s Ireland. Women continually take up prominent roles throughout society. Multiple women run successful businesses, preside over superior Courts and compete at top levels in international sports yet our Constitution holds women and mothers exclusively within the domestic sphere. The language has continually and rightfully been criticised for being outdated, offensive and patriarchal. It is said to discourage women from financial independence and participation in the world outside of the mundane “duties in the home”.

It is widely agreed and understood that these Articles need to be amended. The question that remains is whether the referendum should proceed in November or whether it should be delayed further to allow for the wording to be finalised. The Government has yet to produce the wording for the referendum. The Taoiseach has said it will be ready by the end of September. Difficulties in agreeing a wording for a replacement article and fears a referendum campaign could lead to divisive debates about the definition of the family and gender issues have led to a growing expectation the referendum will be postponed. The Taoiseach has stressed the need to make sure that the wording is right and it is not open to misinterpretation. Mr Varadkar has said that a simple removal of the reference to women in the home would be straightforward, however, the Government wants to instead replace this wording with a clause to recognise all those who have a caring role. Some would argue that we simply need to get on with it and implement the changes. The worry would be if the wording was rushed now in order to proceed with the proposed November date, it would lead merely to a symbolic change rather than a real change.  According to National Women’s Council director Orla O’Connor, getting the wording right for the referendum to replace the “women in the home” article in the Constitution should take priority over the timing of the vote. This is clearly not a straightforward issue and requires the time necessary to ensure that the correct wording is put in place.


By Aislinn Collins Solicitor.

This article is for general information purposes/general overview only and does not constitute legal or other professional advice.  We recommend seeking legal advice to interpret and advise on any aspect of the law.

September 2023 Wolfe & Co. LLP Solicitors