A legal analysis, published by the Free Legal Advice Centres (FLAC) today, of the government’s proposals to amend provisions on care and family in the Constitution has concluded that removing references to women’s work in the home and replacing it with a ‘care’ amendment would be “ineffective” and “sexist”.
In what is being seen as a blow to the referendum proposal FLAC found that “the wording of the proposed ‘care’ amendment is as ineffective as the current so-called ‘women in the home’ provision.”
However, the legal centre said it would support the proposal on family, though it said it was “highly concerned” that the likely legal consequences of amendment and the phrase “durable relationship” had not been “explained adequately” by the government.
On the proposal to delete the reference to women and work in the home, FLAC said: “It is unlikely to provide carers, people with disabilities or older people with any new enforceable rights or to require the State to provide improved childcare, personal assistance services, supports for independent-living, respite care or supports (at home or in school) for children with disabilities.”
“The amendment would give constitutional expression to harmful stereotypes such as the concept that the provision of care, including the care of older adults and adults with disabilities, is the private responsibility of unpaid family members without any guarantee of State support,” FLAC said.
“Like the explicitly sexist ‘women in the home’ provision, the proposed Article 42B endorses a status quo where women undertake the bulk of unpaid care work and places no obligation whatsoever on the State to redress this gender imbalance – rendering it an implicitly sexist amendment,” their analysis found.
They added that the proposal would “give constitutional expression to the harmful stereotype of people with disabilities as the subjects of family care rather than autonomous individuals and rights-holders.”
“The proposed new wording does nothing to enhance (and potentially compromises) the rights of people with disabilities as set out in the UNCRPD,” they said.
“On the basis of this analysis, and because it is a missed opportunity for the rights of women, carers, older people and people with disabilities, FLAC does not support the ‘care’ amendment.”
Under the government’s proposal, Article 41.2, which currently recognises that “by her life within the home, woman gives to the State a support without which the common good cannot be achieved”, would be deleted.
Instead, a new article, 42B, would be inserted which would say that care given by members of a family “gives to society a support without which the common good cannot be achieved and shall strive to support such provision.”
A second referendum – also being held on March 8th – will seek to amend Article 41.2 where the State recognises the special position of the family based on marriage – and instead define the family as “founded on marriage or on other durable relationships”.
‘FAMILY’ AMENDMENT
FLAC said that it supported “the ‘family’ amendment which we believe will ultimately have positive policy and legal implications (in areas like social welfare, family, taxation, and succession law) which will lead to practical improvements in the lives of diverse families that are found by the Courts to come within the definition of “durable relationships”.”
However, they said they were “highly concerned that the likely legal consequences (and benefits to diverse families) of the ‘family’ amendment have been not been explained adequately to date.”
“There is an urgent need for the Government to publish its analysis of the impact of the amendment on existing law and policy. Draft legislation should be published setting out what relationships come within the definition of “durable relationships” in the first instance and the changes that the amendment will require.”
“If the referendum succeeds and such legislation is not introduced (which seems to be the approach the Government is proposing to take), diverse families will have to go to court in order for their new rights to be defined and given effect to,” they said.
FLAC said that having offered legal analysis, the legal centre would not actively participate in the current referendum campaigns.
FLAC describes itself as an “independent human rights and equality organisation”, which exists to promote access to justice. As an Independent Law Centre, FLAC takes on a number of cases in the public interest each year and operates a Traveller Legal Service, Roma Legal Clinic and LGBTQI Legal Service.