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Ok with all of the talk of a maternity leave referendum, I’m here to weigh in on a area of law I’m pretty comfortable with: feminist readings of the Irish text of the Constitution. Because in fact, we kind of already have a provision that would guarantee maternity leave 1/11
Remember Article 41.2? Commonly known as the “woman’s place is in the home” provision? That one that’s problematic AF? Yeah, well, a constitutional protection for/entitlement to maternity leave could very easily be slotted in there. 2/11
And I know what you’re thinking. Big Yikes Energy off of this whole subsection 3/11
And you’re not wrong. Big Yikes all round. Women in the home? DUTIES in the home? But let’s look at it in detail. Specifically, let’s look at the Irish text of that provision, AKA, the only text that matters (see Art 25.4.6) The Irish text uses “teaghlach” which is family 4/11
...throughout the constitution. Not home. So the English text, as the secondary text, is incorrect. It’s not an obligation for women to stay home. It’s a recognition of the place within the family - of the mother’s within families, ie, as the person who usually gives birth. 5/11
Read collectively, it’s very possible for a judge to read that as saying “a woman has a constitutional protection for maternity leave by virtue of not being required to work while pregnant” A wee bit creative, but the courts have been creative before (in the 60s, mostly) 6/11
And lookit, I’m CERTAIN that Dev and the boys absolutely intended it to read that women belong in the home. But this isn’t America and I don’t care what the intention of some weird old misogynists were. The constitution is a living instrument. 7/11
You read it in light of the times. And irrespective of what the lads who wrote it meant, the Irish text still stands, and stands at the forefront. Now, this living instrument craic is where we run into bother. 8/11
Because it’s 2020. And families come in all shapes. All sizes. All genders. If we want true equality, we need to be guaranteeing parental (not just maternity) for all parents, and recognising the validity of all families, not just the ones with mothers. 9/11
Art 41.2 is problematic. But not for the reason you think. And the constitution sorta already protects maternity leave. But that would require actually considering the constitution, not just coming out with ridiculous remarks to show what great fellas you are to the press 10/11
And finally, unless it’s not abundantly clear: there is no need on this earth to constitutionally mandate for maternity leave. That’s what legislation is for. And that’s what politicians are elected to do. 11/11
