LAST UPDATE | 6 Oct 2023

THE CITIZENS’ ASSEMBLY on Gender Equality, in its final report to the Oireachtas in June of 2021, recommended amendments to Article 40 of the Constitution to refer explicitly to gender equality and non-discrimination and Article 41 to protect family life, not limited to the marital family.

It also recommended that Article 41.2 - which gives reference to a woman’s life within the home – be deleted and replaced with language that is not gender specific and obliges the State to take reasonable measures to support care within the home and wider community.

Constitutional amendments on equality need to replace outdated language on family status gender and sex, protecting and respecting the rights of all people, including Disabled People, on an equal basis. Consideration and regard for multiple experiences that people can have such as disability, parenting and gender is necessary so as not to undermine, exclude or discriminate. Any constitutional amendment has a duty to understand and protect the intersectionality of such identities enshrined as equal rights in any constitutional change.

The issue with ‘care’

I have been a Disabled feminist activist throughout my adult life, calling for the removal of Article 41.2. I am now 50. I was over the moon when I initially learned that a referendum was finally being moved in 2018. My heart sank though when I read the call by women’s representative organisations not to run the referendum to remove the Article until wording to have ‘care’ added is considered.

Myself and many incredible Disabled women activists have fought to be seen, heard and respected on an equal par to non-disabled women. As a young woman I was rarely asked, did I want to have children. When I was pregnant, I was asked by a woman, chairing an equality group I was part of, how did I get pregnant?

I was asked how I would take ‘care’ of my baby. At work, I would enter a board room for a meeting, often, my PA is asked, are you Ann Marie, as I couldn’t possibly be the professional leading.

My now 12-year-old is often told what a great child for, ‘taking such good care of your mother and all too often I see expressions of sympathy for my husband. The examples I experienced could fill a page. I offer them to explain that my concern is real. Disabled women and men are faced with the impact of a warped version of care daily.

I am a resilient person. I can laugh comments off and I even have empathy for others’ ignorance with the understanding of unconscious bias and unintentional prejudice. I draw the line with the State moving an ableist referendum that formalises the diminishing of Disabled women in society further.

The right change is needed

Article 40.1 in its current form is discriminatory on a number of grounds, most notably sex, gender and disability. The joint committee on gender equality on consideration of the Citizens’ Assembly recommendations and listening directly to expert witnesses put forward two options for rewording.

To this end, the second suggested option goes further than Option One, “…have due regard to the principles of equality and non-discrimination.” Option 2, not only names the 10 grounds protected in equality legislation but expands on them; “All persons shall be held equal before the law without discrimination on any ground such as gender, race, colour, national, ethnic or social origin, association with a national minority, sexual orientation, language, religion or belief, political or any other opinion, property, birth, disability, age, or other status.”

This option will have rights protected on explicit grounds. As a Disabled woman and mother with extended family and other responsibilities, I would feel included and more protected.

The Article 41.2 recommendation is to delete women in the home and replace it with language that is not gender specific and obliges the State to take reasonable measures to support care within the home and wider community.

The use of the term ‘care’ in policy, public discourse, gender-based, disability and ageing socio-political analysis is paternalistic, stereotyping and assumes certain people such as Disabled adults, children and older people to be “burdens of care”.

Care as a social construct has a deeply traumatic and abusive history right up to the present day.

To place “care” into the constitution would undermine the efforts to protect everyone’s rights on an equal basis. Care in Ireland denies Disabled people our rights. Disabled people have been advocating for our rights to self-determination, as active citizens for decades. For over 30 years we have been campaigning for the right to independent living and Personal Assistance Services, yet the state remains committed to an industry couched in “care” language, while 1,300 young people languish in nursing homes for older people deprived of their liberty, 4000 more in institutions, which remains Government policy regardless of its obligation under UNCRPD Article 19.

Charity and care cultivate pity, prejudice and discrimination. Disabled People being “cared for”, lacks any due regard for our dignity, respect, choice or equality. It is so insidious and embedded in our cultural norm, that the part of the Women’s Movement campaigning for the insertion of “care” into the constitution does not view Disabled Women, as givers of “care” or even register us as part of the collective.

As highlighted by the Independent Living Movement Ireland’s submission to the Inter-Departmental Committee: Referendums on Family, Care and Equality term “care” reflects an imbalance of power, a lack of choice or control over our lives. Since the foundation of the State Disabled people, young girls and women pregnant outside marriage, children in Industrial schools have been “cared for” by the State.

In Ireland being “cared for”, all too often means being denied dignity, dehumanised, asexualised, incarcerated and deprived of liberty.

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To “care for“, is doing onto another with or without choice. It is a duty, a chore, a responsibility, a burden. To “care about” another is to have empathy, compassion, affection and reciprocity. Unfortunately for a large number of the population care is a harmful, traumatising word. Until Disabled People are recognised and treated as equals, with our civil and human rights robustly protected “care” should not be in the constitution.

The Inter-Departmental Committee needs to ensure that a constitutional referendum does not inadvertently dilute the rights of Disabled People. A constitutional amendment needs to be consistent with the UN Convention on the Rights of People with Disabilities obligations.

Change needs to advance the rights of Disabled People regardless of the level of support needed to participate in society as equals, inside and outside of our homes.

The wording in these Constitutional articles risks Disabled people being denied Independent living supports in our own right. Instead, the State will continue to pay family members to “care for” Disabled family members, which is a cheaper option, later ending up in an institution, thus perpetuating falsehoods of infantilisation and burden. Disabled adults have a right to be recognised as having multiple roles including providing support and contributing to our communities. Ask yourself, did I presume Disabled People did not have “care” responsibilities and provide support to others? Does care infer Disabled People are a burden on families and therefore not equal?

I advocate for Article 41.2 of the Constitution to oblige the State to support people to live full lives within the home and wider community, with the necessary supports.

Ann Marie Flanagan is a Disabled Human Rights Activist and is Comms & Public Advocacy rep for the Clare Leader Forum.