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Women and the Law: Historic discrimination in Ireland

By: Gemma McLoughlin Burke

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Gender equality in the workplace, in the family and in society more generally remains a much discussed and debated topic in Ireland, especially post-COVID when the general consensus seems to be that gender equality has been severely impacted by the pandemic. (See the report by Rethink Ireland as reported on in the Irish Times here: Covid-19 has significantly set back women’s economic prospects, report finds). However, whereas in modern Ireland much of the debate centers around attitudes, mindsets, learned behaviours and culture, there was a time when the law itself was a tool by which women were oppressed. It is often said that law does not equate with morality; a walk in the footsteps of the women of Ireland’s past is a great example of this mantra!

  • Women and employment

At present, issues in the workplace mostly revolve around the gender pay gap and the advancement of women into senior positions of power or into male-dominated professions. However, historically, not only were women required to leave their employment in the civil service once they were married, they were also prevented by law from progressing through the ranks of the civil service. The Civil Service Regulation Act 1924 was amended by the Civil Service (Amendment) Act, 1926, whose purpose was specified as being “for enabling examinations for and appointments to the civil service of the government of Saorstát Éireann to be confined to limited classes of persons, and in particular to members of one sex”. Similarly, section 16(2) of the Civil Service Commissioners Act, 1956 stated:

“(2) The Commissioners may, in making regulations under subsection (1) of this section in relation to a competition, provide, in addition to the matters specified in the said subsection (1), for all or any of the following matters—

(c) the requirement that, where females are not excluded from the competition, a female candidate to be eligible for selection shall be unmarried or a widow.”

These discriminatory provisions remained in place until 1973 when the Civil Service (Employment of Married Women) Act was finally passed. The Employment Equality Act 1998 (as amended) now legally prohibits gender discrimination of employees by employers.

  • Women and reproduction rights

Reproductive rights in Ireland have always been a touchy subject on account of the extremely powerful influence of the Catholic Church on the State. Abortion was first criminalised by the Offences Against the Person Act 1861, which imposed a sentence of life imprisonment on those found guilty of procuring or assisting with the procurement of a miscarriage. In 1983, controversial Article 40.3.3 was inserted into the Constitution after an incredibly difficult referendum in which less than 54% of the electorate voted. Although some legal progress was made after the X case and the case of Miss C, this Article was not removed from the Constitution until 2018, when Ireland finally liberalised its abortion laws.

Contraception was prohibited by law via the Criminal Law (Amendment) Act 1935 which banned the sale or supply of contraceptives. It was not until 1979 that contraceptives could be sold to married couples (via the Health (Family Planning) Act) and it was not until 1985 that contraceptives could be sold to anyone over 18 via the Health (Family Planning) (Amendment) Act. The laws around who could legally sell such contraceptives were not relaxed until 1992 when the Health (Family Planning) (Amendment) Act came into place.

  • Women and property

Under the common law, women became the property of their husbands once they became married. This meant they had no entitlement to own property, any property which they did own prior to marriage was transferred to the ownership of their husband and any money they earned from employment automatically became the property of their husband. Aside from entirely erasing a woman’s identity, these laws had knock-on effects in other areas. For example, the Juries Act 1927 only entitled property owners to sit on juries, effectively excluding all married women from becoming jurors. Women were also not entitled to a share in the family home and a husband was entitled to sell the family home without the consent of his wife. Most of these common law rules were either given a statutory footing or were made more complex via the Married Women's Property Acts, 1882 to 1907.

Eventually, the Married Women's Status Act, 1957 and the Family Home Protection Act 1976 were passed. The Married Women’s Status Act is particularly interesting, containing provisions which allow women to be treated “as if they were unmarried” insofar as the ownership of property is concerned. The Family Home Protection Act amended the law to ensure that neither spouse could sell the family home without the written consent of the other spouse.

  • Women and the family

A woman’s position in the family was that of a subordinate to her husband and a variety of Acts (including those discussed above in relation to the ownership of property) served to provide an insuperable hurdle for those seeking to establish themselves as financially and socially independent individuals.

Insofar as marriage was concerned, the Constitution of Ireland as adopted in 1937 prohibited divorce. Although “judicial separation” was introduced in 1989 via the Judicial Separation and Family Law Reform Act, the provision of the Constitution which prohibited divorce was not removed until 1995 and divorce was not put on a statutory footing until the introduction of the Family Law (Divorce) Act, 1996.

Women within the marital relationship had little power. As a woman became the “property” of her husband upon marriage, the general legal view was that he could do whatever he wanted with her. Marital rape was not criminalised until 1990, when section 5 of the Criminal Law (Rape) (Amendment) Act 1990 was introduced which abolished “any rule of law by virtue of which a husband cannot be guilty of the rape of his wife”. Engagements to marry were enforceable under the common law until this was repealed by section 2 of Family Law Act 1981. The 1981 Act also provided for the “Abolition of actions for criminal conversation, enticement and harbouring of spouse.” In effect, previous laws which allowed a husband to sue a man with whom his wife was found to be cheating or who “enticed” a woman away from her husband were repealed. Finally, barring orders were not introduced into Ireland until the Family Law (Maintenance of Spouses and Children) Act, 1976.

What next for equality and the law?

Although the provisions above seem outdated and entirely obsolete, there remain similarly outdated and obsolete provisions in our legal system. The Citizens Assembly on Gender Equality have published an excellent report considering the position of women in the law (can be found here) but the most obvious of these to my mind is Article 41.2 of the Constitution which states: “In particular the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved…The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.” Perhaps it is time this Article is also relegated to the history books?

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