Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1697750015608.pdf (Ireland)
PLEASE CHECK AGAINST DELIVERY Opening statement by Sinéad Gibney Commission Member, Irish Human Rights and Equality Commission.

To be delivered to the Joint Oireachtas Committee on Gender Equality, Thursday 10 March 2022 ------------------------------------ My thanks Chair and I’m joined today by my Commission colleagues Professor Caroline Fennell and Dr. Salomé Mbugua.
We’re delighted to have the opportunity to address this important committee particularly in the same week as International Women’s Day, to discuss the constitutional recommendations of the Citizens’ Assembly on Gender Equality.

The Irish Human Rights and Equality Commission is Ireland’s independent National Human Rights Institution and National Equality Body.
In this role, issues of gender equality are core to our work, and just this week we published two new Statutory Codes of Practice which speak directly to this mandate.

The Code of Practice on Equal Pay provides employers, trade unions and employees with practical guidance on the right to equal pay, how to eliminate pay inequality, and how to resolve pay disputes.
While the Code of practice on Sexual Harassment and Harassment at Work sets out what is meant by employment-related sexual harassment and harassment, how it can be prevented; and the necessary steps to ensure that organisations are ready to deal with it, and to prevent it from happening again.

Both of these codes are legally grounded in a Statutory Instrument brought forward by Minister O’Gorman and will be legally admissible as evidence in proceedings before the courts, the WRC and the Labour Court.
Before getting into the detail of today’s discussion, I would first like to pay credit to the work of the Citizens’ Assembly, its Chair Catherine Day and its 99 participants.

We contributed to their deliberations both in writing and in person, and we welcome the Citizens’ Assembly’s priority recommendations, including these three recommendations for constitutional reform.
I pay credit also to the Citizens’ Assembly’s recognition of intersectionality and the layers of discrimination experienced for example by Traveller and Roma women, migrant women and disabled women.

We stand clear that Ireland’s constitutional and legislative framework must be responsive to cultural and societal changes in order to fully protect gender equality and women’s rights.
I will address in this opening statement at a high level initially the three recommendations on our Constitutional Framework in respect of gender.

And we will of course then be happy to go into more detail in the discussion.

Firstly, on Article 40.1 Our Constitution guarantees us equality under Article 40.1, but there is continuing uncertainty about the principles governing its application to combat discrimination.
The constitutional guarantee of equality in this Article ranks first among the fundamental rights protected under the Constitution.

Yet, as we stated in our recent amicus intervention in the case of Donnelly v. Minister for Social Protection & Ireland, where judgment is pending, there remains significant uncertainty about the principles governing its application.
This uncertainty affects the extent to which Article 40.1 is effective in practice in ensuring equality before the law and in combating discrimination under the law.

In respect of Recommendation 1, we agree that Article 40.1 of the Constitution should be amended to refer explicitly to gender equality and non-discrimination.

As Catherine Day pointed out to this Committee last week, “Around 80% of the world’s constitutions already have such provisions.” It is long past time for Ireland to join that list.
Next, on Article 41 There is clear support for a broader, more progressive understanding of what constitutes a ‘family’ in Irish law, and this Citizen’s Assembly recommendation captures that support.

Article 41 of Bunracht na hÉireann protects the rights of the family, and contains a number of provisions imposing duties on the State.

Article 41.1 recognises the family as the ‘natural primary and fundamental unit group of Society’.
Noting that Article 41.3.1 obliges the State to ‘guard with special care the institution of Marriage, on which the Family is founded’, the Supreme Court has interpreted references to the family in Article 41 as the family founded on marriage.

Although I note that in more recent judgements, we’ve seen a different tone from the Supreme Court regarding this legal point.
We recommend that Article 41, including 41.3.1, is amended to recognise the broader conception of family life recognised in international human rights law.

In updating the Constitution to promote a more inclusive concept of ‘family life’, there must be consideration of the wide range of family relationships that have been recognised in the context of international human rights law, as well as in Irish law, policy and society in recent times.
Family rights are recognised by a number of international human rights treaties in particular Article 8 of the European Convention on Human Rights.

In its jurisprudence, the European Court of Human Rights has broadly conceived ‘family life’ beyond the nuclear family to recognise familial relationships where there is evidence of the existence of close personal ties, referred to as de facto family ties.
In one of our first policy statements as a Commission issued in February 2015, we set out in respect of access to civil marriage how problematic it is to frame the family as being based on marriage.

And while Ireland voted with a huge majority in May 2015 for equal access to marriage, becoming the first country in the world to do so by popular vote, the fundamental issue of this constitutional focus on the marital family, remains an issue.
We also stress the importance of alignment between the constitutional reform work now being undertaken by this Committee, and the review of equality legislation, which is currently underway by the Minister for Equality and these houses, which will of course include the family status ground.

And on Article 41.2 where the public debate has been strongest to date.

We hold the view that Article 41.2 is not compatible with Ireland’s international human rights obligations.
We have been clear and consistent on this before these houses, with Government and in our recommendations to international human rights treaty bodies.

1 The language used in Article 41.2 of Bunracht na hÉireann continues to perpetuate stereotypical attitudes towards the role of women in Irish society and should be amended to make it gender-neutral.

Further questions then arise as to how care work should be recognised and supported.
This question of valuing care runs not only through our Constitution but also through our equality laws.

We have previously made recommendations to overhaul State policy to ensure that care work is adequately supported, publically valued and equally shared.

And this features heavily in our new strategic priorities.
The current definition of the ‘family status’ ground of our equality acts, does not go far enough to capture and protect the full range of caring responsibilities present in modern Irish society.

For example, the reality is that many of us may now care for older relatives or individuals who do not live under the same roof as us.

Care remains a highly gendered aspect of Irish society and this has been exacerbated further by the Covid-19 pandemic.
Our 2019 research with the ESRI “Caring and Unpaid Work in Ireland” has shown that women are far more likely than men to be engaged in care work, and those that do provide care work provide substantially more than their male counterparts.

Care work is often juggled with employment responsibilities, and women are overrepresented among employees availing of reduced hours.
Ireland has the third highest rate of unpaid work for both men and women, and the gap between the genders is among the greatest in the EU.

Debate on article 41.2 has already highlighted widespread acknowledgement that this area has evolved significantly over the last number of decades.
The recognition by the Supreme Court of married couples without children as constituting a ‘family’ for the purposes of article 41.2 shows that the care work envisaged by the Constitution goes beyond childcare and can therefore take place outside the context of the home.

Furthermore, recommendations stemming from the Convention on the Constitution made explicit reference to the importance of care in the ‘wider community’.
We also note that the State has obligations under the International Covenant on Economic, Social and Cultural Rights to: “reduce the constraints faced by men and women in reconciling professional and family responsibilities.” The State must remain focused on the reform of Article 41.2 not only as an exercise in removing an archaic reference, but also as a means of introducing a long overdue recognition of the public good realised within Ireland’s families and in caring roles.
Given that this is now the recommendation of not one but two Citizens’ Assembly’s, having also been recommended in 2013, it’s beyond time for a referendum to have our Constitution reflect our lived realities.

Constitutional Reform Is One Piece of Ensuring Progress It’s also important to be clear that Constitutional reform is not enough, and needs to be aligned with other measures.
In current research work we have underway with Prof. David Kenny of TCD on constitutional change more broadly, we’ve identified that there is a need for ‘cultural not just textual change’.

Political culture and judicial culture must support the vindication of these rights so that they can be made real in practice.

There is need to win support and buy-in not only from the public in the form of a referendum, but also from the political and judicial sectors for longer- term and lasting change to happen.
It’s crucial also that campaigning for constitutional protection of rights does not ignore other, non-constitutional changes that could buttress or supplement our gender equality protections.

Constitutional change is just one part of the story, and we must consider complimentary measures that might in parallel, and often in the more immediate terms, champion and allow gender equality to prosper as our societal norm.
I’m here today as Chief Commissioner, but this is also a moment of great personal importance for me.

I’ve long considered these articles to be blind to the situation of my own family.

I raised my daughter as a lone parent.

I worked outside the home to support her, as well as inside the home to care for her – a reality that is anomalous to article 41.2.

And there was no marriage inside our little family so we are not a family, as defined by 41.3.
I’m very proud of my daughter as a wonderful young woman making her way in the world, I’m proud of my parents for supporting us, and I’m proud of myself for going it alone.

But I am not proud of the Constitution that is supposed to represent me.

Because in this important regard it doesn’t.

I look forward to a rich discussion, and thanks once again for the opportunity to be here today.

ENDS