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Abstract

Constitutions reflect national values and set out the foundational principles of governance. Traditionally, those values and principles have been male-defined. As such, constitutions often form the basis of the ‘gendered state’ with all its attendant inequities. Feminist constitutionalism challenges the wider domain of constitution-making to consider questions relating to gender inequality in constitutional debate, design and redesign. Through a case study approach, this article utilises a feminist lens to examine on-going constitutional debates in Northern Ireland that have been deepened by Brexit. Any new constitutional arrangements on the island of Ireland will drive multiple transformations in social, legal and economic life that will impact on the lives of women. Subsequently, this article explores the gender dynamics of current debates to contribute to the broader feminist literature on constitutional transitions in deeply divided societies.

Keywords

Irish unification gender inclusion feminist constitutionalism participation divided societies

Brexit has deepened the debate on Irish unification. It provoked a series of academic explorations on the prospect of political unity on the island of Ireland sparking renewed scholarly debates on Northern Ireland’s constitutional future. Any new constitutional arrangements on the island of Ireland will drive multiple transformations in social, legal and economic life that will impact the lives of women. While there has been a history of marginalising gender equality concerns in public life in Northern Ireland, inclusionary and participatory approaches have been proposed by advocates for constitutional change to move the question of Irish unity forward. The most conspicuous proposals have been an all-Ireland citizens’ assembly and a widening of public constitutional debate beyond ethno-nationalist standpoints. Utilising a critical gender lens, this article assesses these proposals against the background of the historical marginalisation of women from constitutional debates in Northern Ireland and its legacy.

Introduction

Feminist constitutionalism challenges the broader analytical field to consider questions relating to gender inequality in constitutional debates and design. Feminist research has exposed how constitutional structures and assumptions intersect with wider systems of gender power. Moments of constitutional change are particularly important for feminist analysts because transition provides opportunities to address principles and structures that reinforce gender inequities through the development of more gender-sensitive forms of constitution-making. However, when constitutional change emerges as a point of debate in a society, gender equality concerns are often elided. Feminist analysis seeks to shape discussion and debates about constitutional change by bringing issues of gender inequality from the margins to the centre of debates. A close feminist examination of recently revived and intensified debates about constitutional change in Northern Ireland (NI) offers further insights into the positioning of gender in these debates while also making gender the focal point of analysis.

Recent constitutional discussions in NI were prompted by the UK’s exit from the European Union (EU) which altered the fabric of British politics. However, the loss of EU identity combined with a shift to a more exclusive British identity has been felt more acutely in NI and Scotland, regions that voted to remain within the EU in the 2016 referendum. In NI, narratives of shifting identities and borders have emboldened nationalists and promoted more territorial focused agency reflected in increased public discussions around Irish unification. Currently, debates continue to revolve around Irish nationalist calls for political movement on plans for a referendum on Irish constitutional unity. Conversely, Ulster unionism, particularly in its political expressions, has rejected any form of constitutional change with regard to NI. Therefore, constitutional debates are firmly embedded within the sphere of ethno-nationalist politics and identifications.

In NI, the dominance of ethno-nationalist blocs in constituting political agendas has historically displaced the justice claims of women – a diverse, fluid and complex identity¹ – and other marginalised groups. What is interesting for the feminist analyst is that groups concerned with moving the question of Irish unity forward in the current context have proposed inclusive approaches to debates on constitutional change. An all-Island citizens’ assembly and strategies to widen public debate beyond ethno-nationalist groups have been proposed to promote greater participation in on-going constitutional debates by a range of identity groups including women. The emergence of such proposals in the context of deep ethno-nationalist division makes NI an important context for feminist inquiry. Utilising a critical gender lens, this article assesses these proposals against the background of the historical marginalisation of women from constitutional debates in NI and its legacy.

The Constitutional Question

The aspiration for the unification of Ireland dates to its partition in 1921. Ó Beacháin (2018) notes that after partition unification was a ‘low-intensity aspiration’ in the Republic of Ireland (ROI). In NI, its pursuit by physical force Irish republicans shaped the contours of 30 years of violence that, for the most part, ended in 1998 with the NI Peace Agreement (The Agreement, 1998). The Agreement incorporated the aspiration for unification into democratic politics and underlined its democratic legitimacy. While unification was inserted as a valid political aim in the final Agreement, that text also stated that any change to the constitutional status of the region can only be achieved with the consent of a majority of the people in both NI and the ROI (The Agreement, 1998, Article 1).

After the Agreement, unity remained an important Irish nationalist goal, but it was a long-term goal. The UK’s exit from the EU provoked increased discussion on the benefits of unification particularly in terms NI citizens regaining EU membership. When Brexit occurred, some of the more traditional objections to unification had become less salient due to social and economic development in ROI (Clark et al., 2017: 11). The COVID-19 health crisis highlighted the need for greater policy convergence and co-operation between North and South of the Irish border adding weight to arguments for increased merging with ROI (ni.gov.uk, 2020). Internationally, the election of Joe Biden, whose great-great grandfather Patrick fled the Irish potato famine was a sign that US politics could shift in favour of Irish nationalists’ political aspirations. As Little (2021) observed, ‘talk of a united Ireland is no longer a matter for the birds’.

For unionists, the constitutional picture looked less optimistic. The 2019 version of the NI protocol created further political friction between Ulster unionists and the Westminster government while heightening tensions in NI. By establishing, in effect, a customs and regulatory border on goods moving from Great Britain (GB) to NI in the Irish sea, unionists claimed, the Westminster government had colluded with pro-nationalist forces to undermine NI’s constitutional union with GB (see Diver, 2021). In this shifting constitutional landscape, it is unsurprising that constitutional debates have become amplified in public discourse, and calls for unification have become louder. However, any movement towards the actualisation of Irish unity requires the Secretary of State for Northern Ireland to enable referendums in both NI and ROI. There is no set criterion for when it would be appropriate for that border poll on unity to take place. The Northern Ireland Act 1998, Part 1: Section 1 (Gov.uk, 1998) states that:

. . . if at any time it appears likely to him that a majority of those voting would express a wish that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland, the Secretary of State shall make an Order in Council enabling a border poll.

One outstanding issue is how would the Secretary of State determine if a majority in NI ‘wish’ for unity? Would a demographic catholic majority in NI suggest a border poll should be called? Or, would attitudinal surveys be a useful measure of support for constitutional change? Ashcroft’s (2019) survey found ‘a statistical tie’ between those who wanted to remain in the union with GB and those who supported a unified Irish state. A Lucid Talk poll, commissioned by The Detail (2020), suggested that the future outcome of a border poll was on a ‘knife edge’. The latest survey on unity was commissioned by the BBC NI’s Spotlight programme and conducted by Lucid Talk in April 2021 found 43% in favour of unity and 49% opposed (The Journal, 2021). However, other surveys have painted a more complex picture by taking account of variables such as age and voting history (University of Liverpool, 2019), and according to the Northern Ireland Life and Times Survey (2020), only a third of respondents said they would vote for a united Ireland in a snap referendum. Rather than constituting objective measures of support, the polls have become part of the contested terrain of unity debates in terms of their reliability, but the results of specific surveys have been interpreted as evidence of a trend towards increasing support for unity by Irish nationalists (Finucane, 2021).

The changing constitutional landscape outlined above does not mean that the stars have aligned for pro-unity nationalists. When Chancellor Kohl spoke of ‘blossoming landscapes’ through the unification of Germany, he appealed to the interests of the German people East and West (Landler, 2014). NI remains a deeply divided society and Irish nationalists are appealing to unionists to join them in building a new Ireland. Unionists are also a constituency still deeply invested in a British identity. That identity is undeniably grounded constitutionally, but it is constituted through historical cultural practices and signifiers. As Todd (2021: 23) put it, unionist resistance to unity encompasses ‘more than the fear of becoming a minority. It is a fear that their British identity and the meaning of their past would be obliterated with state change’.

The Scottish independence and Brexit referendums illustrated the potentially socially divisive nature of the referendums on constitutional change. The stakes are much higher in NI due to its history of ethno-nationalist violent conflict. The continuing presence of armed groups in the region means the spectre of violence has not disappeared. Loyalist spokesmen (e.g. Irvine quoted in Carswell, 2019) have raised concerns about the effects of shifting the constitutional ‘tectonic plates’ on young loyalist mindsets. Concerns about the likelihood that movement towards a border poll would reinforce intercommunal tensions and division has been cited by members of the Irish government including the Taoiseach (Irish Prime Minister) who counselled against rushing into a border poll. The Department of the Taoiseach did launch a €500m Shared Island project in 2020 (www.gov.ie, 2020). The initiative was designed to explore co-operation between the North and South of the Island. However, the ‘go slow’ approach is unlikely to dampen the on-going building of pressure for further and more substantial conversations on the issue of a border poll (see McConville, 2020).

The dominant debates outlined above are primarily concerned with ethno-nationalist-based rights. However, national identity is complex, multi-layered and dynamic as is the concept of the nationalist community (Finlayson, 1998). Historical hierarchies within nationalist communities are reproduced in terms of how political and constitutional concerns and aspirations are framed. Before examining recent proposals for overcoming the exclusion of the concerns and justice claims of marginalised groups, including women, it is important to examine women’s exclusion not only from constitutional debates but also from the shaping of constitutions. This historical focus highlights some of the exclusionary dynamics that contemporary proposals for women’s inclusion in the constitutional debate will need to address.

Gendering Constitutions

Women’s identities in NI diverge politically and are crosscut by, for example, class, sexuality, race, geographical location and religious affiliation. A significant number continue to identify with either unionism or Irish nationalism. While women may identify with the constitutional position of nationalist blocs,² the gendered relationships of power in NI within and across those blocs have been contested. These contestations are visible in recent struggles around reproductive and sexual rights but they have a much longer history. All aspects of NI society including the region’s conflict (Ashe, 2019; Gilmartin, 2019), economy (Ashe and Harland, 2014), its culture, government and peacebuilding processes (Ashe, 2019) have been impacted by gender power relationships. Historical ethno-gender power relationships in NI continue to permeate women’s lives in ways dependent on their social and economic location (Ashe, 2019). Despite on-going visible and invisible struggles for gender equality, the strength of the ‘nation first’ standpoint in the region means that women’s political interests can be easily side-lined or assimilated into the collective vision of constitutional rights and nationalist goals.

Historically, women have had less influence on the shaping of the national values embedded in constitutions. The Irish constitution was written by men despite women’s participation in the Irish war of independence 1919–1921. As Rowley (1989: 1) noted: ‘We are now certain, since the publication of the papers in relation to the drafting of the Constitution, that no woman had any hand, act, or part in drawing it up’. The constitution set out national values, but it also constituted a patriarchal image of woman and subscribed her role within the nation (Rowley, 1989: 1). Article 41.2.1. (Constituteproject.org, 2021: 35) reads: ‘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’. While that article has now been reviewed, it is important to note, as Rowley (1989: 2) does, that: ‘In our Constitution, the fixing of the duties, or the “life-within-the-home” of the woman in direct relation to the state, in the attainment of the common good, is not only problematic, but has created situations of injustice to women’.

The dominance of men in public life also shaped Britain’s uncodified constitution. Celebrating the political acumen of hegemonic masculinities as much as the British constitution, Dean (1893: 7−8) effused that: ‘No one can contemplate this stupendous and beautiful fabric, standing out in all its colossal proportions, and realize that at least thirty generations of men have been the architects that have reared it upward, story by story . . .’. Constitutional institutions, such as parliament, the judiciary and the police, still reflect historical disparities in terms of gender inclusion and representation. A Ministry of Justice (2020) report indicated that 26% of those in more senior judicial roles (High Court and above) were women, and the figures for ethnic minority women and for sexual and gender minority women were considerably lower. As MacKinnon (2013: 1) put it, historically, ‘constitutions have been almost exclusively man-made, and it shows’. The abstract rights-bearing citizen in constitutions means that historical inequities are preserved, and the language of universal rights masks power relationships between social groups. As Skeet (2007: 145) reminds us: ‘The history of constitutions can be seen as a history of the categorisation and exclusion of certain groups, either through imperial projects or internally through the construction of a citizenship’.

However, at this historical juncture, it may appear that referendums North and South of the border will allow women to have an equal opportunity with men to cast their vote in favour of their preferred constitutional outcome and also their preferred constitutional language. In terms of determining the constitutional future of the island of Ireland through referendums sovereignty lies ‘with the people’. The idea of a unity referendum as an expression of the popular will was articulated well by the leader of Sinn Fein, Mary Lou MacDonald who reminded DUP MLA³ Gregory Campbell in a televised debate (RTE One, 2021) that in any border poll, he would have ‘one vote’ and she would have ‘one vote’. Of course, any attempt to qualify for majority support – with, for example, ‘significant (“respectable”, “sizeable” or “decent”) evidence of unionist support’ as has been proposed – would recalibrate that principle as noted by O’Leary (2021: 7).

No similar suggestion that a ‘sizeable’ number of women should support constitutional change has surfaced in debates around a border poll. That suggestion would be incomprehensible within the hierarchical structuring of identities within current constitutional debates, although women have historically experienced a much greater range of inequalities in NI and ROI compared to men. The point is that historically the importance of specific groups’ rights has been ordered hierarchically and the dynamics of this hierarchy are discussed further in the next section. This uneven approach to the relative importance of groups’ claims for justice means that expressions of the ‘popular will’ in constitutional referendums can lead to highly gendered outcomes. Those gender outcomes and the gender power relationships that supported them were visible in the last referendum on constitutional change in 1998. It is important that scholars and commentators remain cognizant of those historical gender power relationships because many have been preserved.

Direct Democracy

The 1998 referendum on the NI Peace Agreement was an exercise in direct democracy. The constitutional arrangements and principles that would follow a ‘yes vote’ which was determined by a simple majority were set out in that Agreement. By securing a dramatic reduction in political violence and creating power-sharing institutions The Agreement (1998) benefitted all social groups in NI including women. However, The Agreement (1998) is instructive in terms of what a popular vote can deliver constitutionally for women in a deeply divided society. In effect, each citizen who voted in that referendum legitimised a deal structured and struck by elites. The failure of the political parties to grapple with a whole range of conflict legacy issues after the referendum in 1998 continues to impact particular social groups. Women who belong to these groups like their male counterparts were ‘let down’ in the longer term by a peace process that evaded resolution of issues such as victims and survivor rights, and sidestepped issues of social exclusion and the persistence of paramilitary control in working-class areas (see Ashe, 2019).

Nor did the 1998 Agreement secure increased gender equality in more general terms. That failure was not a consequence of the actions of the Northern Ireland Women’s Coalition (NIWC) who had representatives in the negotiations that led to the Agreement, but was shaped by a range of historical and political factors (see Fearon, 1999). The inclusion of political groups and issues in the negotiations was based on inclusion as required in order to reach a political deal. So, for example, the electoral system was designed to promote the inclusion of the political representatives of loyalist armed groups, but this system also allowed representatives of the NIWC to gain seats at the negotiation table (see Fearon, 1999).

While the NIWC was able to insert a commitment to women’s right to participate in public life into the final 1998 Agreement, there was no mechanism to increase women’s political representation or monitoring of how well that commitment was being actioned. The Civic Forum proposed in the Agreement which would have included representatives of women’s groups was effectively dissolved (Bell, 2004). A range of historical inequalities such as restrictions on reproductive rights were elided. The lessons from the past demonstrate that in a context wherein the interests of ethno-nationalist blocs sit at the top of the political hierarchy, which is still the case, then neither a popular vote nor direct participation by women through membership of political parties in constitutional negotiations will guarantee a gender-sensitive constitutional design. This observation does not mean that democratic gender politics should not be concerned with the inclusion of women as constitutional experts or as members of political parties and lobbying groups within a ‘nation first’ political culture. Gender equality demands that women are included in all social and political roles. However, the development of debates around gender equality requires the explicit inclusion of gender equality concerns by all parties and groups focussed on matters of constitutional change. In other words, it requires both symbolic and substantive gender representation.

A narrative of inclusion as required and inclusion as desired is now well established in journalistic and political commentary on unification. The spotlight shines on the inclusion of political unionism and Irish nationalists’ right to move planning for unification forward. If the concerns of these two blocs dominate then the claims of historically marginalised groups within and outside of both blocs will be diminished, as they have been in the past. Skeet (2007: 150) counsels that ‘constitution making should be subjected to the same democratic participatory processes as other areas of governance’, and that principle of participation is codified in international law.

Without meaningful participation by historically subjugated groups, including women, some constituencies will struggle to shape debates on constitutional change and their eventual outcomes. However, participatory approaches have been proposed that could potentially overcome the ethno-nationalist ‘capture’ of debates on the constitutional question and enable a more pluralist approach. Clearly, these approaches are of concern to feminists, but they need to be examined within the context of the historical exclusion of gender concerns in constitutional debate and design described above. The next section considers the potential impact of a proposed all-Ireland citizens’ assembly designed to deliberate on the constitutional issue in NI on gender inclusion and justice. The article then moves on to examine strategies that have been proposed to widen the political debate beyond ethno-nationalist concerns.

Citizens’ Assemblies and Gender Justice

There has been criticism of the Irish government’s ‘failure’ to prepare for a border poll on unification (see, for example, Brady, 2021). In preparation for the 2014 Independence referendum, the Scottish Government published a 670-page strategic plan for an independent Scotland (Scottish Government, 2013). This plan included specific commitments to gender equality. At the time of writing, any announcement by the Irish Government that it intended to bring forward a plan for unification would be, for unionists, the political equivalent of a tsunami. When the Irish Tánaiste (Deputy Prime Minister) Leo Varadkar commented that he believed in the unification of Ireland and that it could happen in his lifetime at his party’s conference in 2021 (Varadkar quoted in Leahy, 2021), the Secretary of state for NI Brandon Lewis responded that he was surprised by Mr Varadkar’s remarks. Lewis urged politicians ‘to dial down the rhetoric’. (Lewis quoted in bbc.co.uk, 2021). Varadkar was 42 years old at the time. In several countries, including Ireland, wherein there has been pressure for constitutional change, citizens’ assemblies have been set up to consider constitutional matter(s) and provide recommendations to the government. These assemblies are viewed as able to turn down the political heat on contentious issues. Advocates claim that citizens’ assemblies have the potential to deliberate on ‘intractable problems that elected bodies have been unable or unwilling to address on their own’ (Garry et al., 2021: 2).

In the NI case, calls for an all-Ireland citizens’ assembly have been motivated primarily by political unionism’s resistance to discussions on constitutional change (see McClements, 2019; Ward, 2021).⁴ Other commentators have stressed that moving constitutional discussions through the citizens’ assembly mechanisms are required to ‘avoid the madness that has convulsed Britain’s body politic’ (Murphy quoted in McClements, 2019). Pressure groups seeking to advance constitutional change maintain that an all-Island citizens’ assembly will ‘assist in informing the debates’ but it is ‘only one element of the work that can be taken forward now’ (Ireland’s Future, 2021: 8).

For critics, the main sticking point with this suggestion is that it may not be possible to include unionism. As above, it is unionism’s potential self-exclusion from this kind of deliberative forum that has dominated the debate on the appropriateness of citizens’ assemblies for dealing with the constitutional question in the region (see Flynn, 2021). Moreover, it has been suggested that without unionist inclusion, the process could not be viewed as legitimate (see Flynn, 2021; see Garry et al., 2021, 2022, for discussions of potential models). Disputes around whether unionists would participate in a citizens’ assembly on the constitutional question are likely to continue, but it is also important to examine the potential effects of this mechanism on other social groups; an issue currently buried under the machinations of on-going ethno-nationalist inspired quarrels.

Much has been written about the potential of this mechanism to support inclusionary, democratic decision-making processes (see Smith and Wales, 2000, for an overview). It removes decision-making from elites and give space to bottom-up deliberation by ordinary people on issues of concern (Renwick, 2017). Members are selected through a sortition whereby individuals are randomly selected to form mini-publics reflective of the wider demographics of the population according to various criteria (such as age, race, gender, region, and income). Members learn about the issue(s) under review, and deliberate and make recommendations to government. The effect according to advocates is not only better decision-making but also the inclusion of a range of social identities (Farrell et al., 2019). In many respects, citizens’ assemblies reflect the ideals of deliberative democracy: they affirm the importance of diversity in decision-making; they recognise different experiences and perspectives; and they act as an antidote to elite decision-making based on party interests and populist narratives.⁵

Moreover, the process has been tried and tested in the Irish context to address a range of constitutional issues related to gender-based rights:

The Irish Constitutional Convention (2012-2014) discussed ‘a set of eight different proposals for changes to the constitution (Farrell et al., 2018). Since in Ireland any constitutional changes require a referendum, one of the main outcomes of this deliberative process was the recommendation to hold a referendum on marriage equality (Elkink et al., 2017) . . . The citizen’s assemblies that followed were successors of the ICC. ‘The Irish Citizens’ Assembly was established in 2016 by a parliamentary resolution and tasked with deliberating on a number of issues, including the Eighth Amendment’ (Palese, 2018).

Devaney et al. (2020: 1) commented that ‘the ability of Ireland’s Citizens’ Assembly to spearhead referenda and profound constitutional reform is . . . frequently noted internationally, including in relation to repealing Ireland’s constitutional ban on abortion’.

Feminist investigations of citizens’ assemblies have highlighted that the inclusion of women is not enough to ensure equality of ‘voice and participation’ within this deliberative space (Harris et al., 2021: 179). For example, ‘guaranteeing voice, respect and consideration’ for minority groups is necessary to ‘minimise the risk of internal exclusion’ (Harris et al., 2021: 179). Some studies have found that in some deliberative settings women participated less than men (e.g. Gerber, 2015; Himmelroos, 2017). In the case of Ireland, Harris et al. (2021: 188) found no significant differences in small group deliberation, but did find slightly less participation by women in plenary sessions. They concluded that the Irish deliberative forum had a number of features that ensured there were minimal differences in men and women’s participation.

The broader framing of the Irish case as successful is largely based on the outcomes from the citizens’ assembly that deliberated on Ireland’s restrictive abortion law enshrined in the Eight Amendment to the Irish constitution (Irish Statue Book, 1983).⁶ The assembly’s recommendation that the amendment be repealed was supported in the subsequent public referendum leading to an association between citizens’ assemblies and the enactment of constitutional change to progress gender rights. However, citizens’ assemblies cannot be viewed as mechanisms that invariably deliver gender rights and it is important to explore their gender dynamics more broadly and particularly in relation to national futures. Scotland recently convened a citizens’ assembly to deliberate on Scotland’s future by considering the following questions: What kind of country are we seeking to build? How best can we overcome the challenges Scotland and the world face in the 21st century, including those arising from Brexit? What further work should be carried out to give us the information we need to make informed choices about the future of the country? (Citizens’ Assembly of Scotland, 2021). Wales also convened a citizens’ assembly to consider the question: How can people in Wales shape their future?’ While the details of what an all-Ireland citizens’ assembly would look like are sketchy, these may be models that could be reproduced in the Irish context and it is important to examine their gendered outcomes (Involve, 2019).

The Welsh citizens’ assembly was confined to modes of citizen engagement with government on issues facing Wales and recommended more citizens’ assemblies (Involve, 2019). No gender issues were included in the long list of topics for future deliberation identified by the assembly (Involve, 2019: 66−67). The Scottish citizens’ assembly produced broader recommendations covering social need, low pay, tax and the environment. None of the recommendations made any mention of gender inequalities in the cross-cutting issues the assembly deliberated on such as poverty and precarious low paid employment (Citizens’ Assembly of Scotland, 2021). Moreover, recommendations such as the government should seek to ‘inspire children from an early age to have an interest in, and to consider a career in, science and technology’ took no account of the gender disparities in that sector (Citizens’ Assembly of Scotland, 2021: 17). In 2018, 10% of senior managers in STEM (Science, Technology, Engineering, and Math) professions in Scotland were women (National Advisory Council on Women and Girls, 2018: 1). The problem is that a citizens’ assembly organised to deliberate on a country’s future can completely elide issues of gender and other marginalised identities when deliberating while simultaneously including those identities within its ranks.

There are also more general issues to consider in terms of how citizens’ assemblies engage with gender issues outside of the framework of constitutional futures. It is important to note that, in Ireland, a citizens’ assembly deliberated exclusively on gender equality (2020–2021) which included deliberation on Article 40.1 of the Irish constitution discussed above that defined the role of women as primarily familial failed to deal with issues of intersectionality (The Citizens’ Assembly, 2021). Even in an assembly designed to address gender issues, veteran feminist campaigner Ailbhe Smyth (quoted in Fletcher, 2020) noted that there was no explicit reference to the inequalities between women in terms of class, ethnicity, disability, sexuality and other factors. The final recommendation of that Citizen’s Assembly stated that ‘It was not possible, given the breadth of the resolution and the time available, to consider and develop detailed recommendations to target issues specific to each of these groups’ (The Citizens Assembly, 2021: 89; see also Ashe, 2022). While these recommendations were given a warm welcome by feminists, this assembly largely identified actions that had already been recommended by the community and voluntary sector. Therefore, the recommendations that emerged from that citizens’ assembly were a result of government failure to listen to and act on the policy advice of that sector. Moreover, the women’s sector, the experts, working on the ground on these issues, dealing day and daily with the effects of gender inequality, were not mentioned in the recommendations of the CA on gender equality (see Ashe, 2022). They were not identified as key partners in the implementation and monitoring processes in the Citizens’ Assembly report.

The main benefit of this mechanism for gender politics is that when linked to feminist activism it can raise the public profile of gendered issues and promote pre-existing recommendations for addressing them in ways that can elude the voluntary and community sector organisations. However, citizen’s assemblies dealing with a country’s constitutional future and those designed to deal explicitly with gender issues relating to constitutional laws can reflect the marginalisation of women sector organisations in policy-making in their agendas as in the case of the former and in their necessity as policy-making arenas in the case of the latter.

The examples discussed above suggest that citizens’ assemblies can produce radical, gender justice outcomes as in the case of the repeal of the Eight Amendment. However, they can also result in a narrowing of gender equality issues or in the case of Scotland’s Future elide issues of gender completely. The effect of citizens’ assemblies on gender equality is not pre-determined simply because they include equal numbers of men and women. Their outcomes depend on multiple factors that operate within broader and complex political cultures and environments.⁷ The citizens’ assembly on the repeal of the Eighth Amendment was a product of feminist activism and was followed by a very extensive, public feminist campaign for a ‘yes vote’ in the referendum. Feminists were already campaigning hard on the issue of reproductive rights long before the citizens’ assembly was set up. As one feminist activist put it, you must ‘prepare the ground’ for a citizens’ assembly.⁸ After the assembly reported feminists held protests, organised strikes and engaged in making women’s stories of their reproductive experiences visible in the public sphere.

The implication is that if an all-Ireland citizens’ assembly is established to deliberate on aspects of constitutional change, public discourse on the matter will need to include gender equality issues and the effects of any new constitutional arrangement on women will need to be considered. Otherwise, those issues may be filtered out of citizens’ assembly deliberations or given token or ‘add on’ status. Citizens’ assemblies can be useful tools for feminism but there is always a risk that they can entrench pre-existing inequalities if applied to issues of constitutional change in a political culture with a history of syphoning those issues out of political debate. The above discussion suggests that to avoid the sublimation of gender equality concerns in constitutional forums, including but not limited to citizens’ assemblies, those concerns will need to be visible in wider public discussions on Irish unity. As Wojciechowska (2019: 901) argues, ‘one-off’ acts of inclusion may be insufficient to ensure that minority group perspectives are included, and this problem is most acute in relation to the perspectives of minorities within minorities – those with two overlapping ‘disempowered’ identity categories or those on a fluid ‘identity spectrum’. Dryzek and Niemeyer (2008) highlight the inclusion of identities does not necessarily mean the inclusion of critical discourses. These more critical discourses may need to be developed in spaces outside formal deliberative forms. The need for the on-going development of critical discourses about unity is reflected in calls for the inclusion of multiple identities in public sphere discussions on constitutional change. This approach is discussed below in terms of its potential impact on the integration of gender equality concerns into constitutional debate.

Gender Inclusion and Constitutional Debate in the Public Sphere

Lamont (2015: 41) frames the public sphere as a system that is interconnected and composed of different sites and dialogic processes. Advocates of constitutional change have argued for inclusive public sphere debate on unification, but the specifics of where and how these inclusionary processes and mechanisms would operate have yet to be fully framed. They are of immense importance for the development of spaces for crystallising subaltern discourses (Wojciechowska, 2019: 906). However, it is clear from pro-unity literature that an inclusive dialogue about constitutional change should and could be facilitated. Ideas about a wide range of civil society groups’ inclusion in constitutional conversations and debates are sprinkled liberally throughout pro-unity discourse. For example, Sinn Féin (2019: 3) has argued that planning for constitutional change:

. . . means facilitating an open, inclusive and informed societal dialogue that engages the broadest section of stakeholders, including all political parties on this island, and for example, the trade union movement, women’s groups, faith communities, the business community, wider civil society, local communities, and of course, our new communities.

The party (Sinn Fein, 2019: 7) has also argued that a national convention should be set up which would be inclusive of different social groups.

Acknowledgement of the need to include a range of groups including grassroots women’s groups is important to avoid the traditional elision of gender justice issues from constitutional debates. Suggestions that a national convention that would include women seem equally progressive. We know that women’s inclusion in public debate on constitutional change raises the possibility that gender equality issues will be included in developing constitutional agendas. As Skeet notes (2007: 150), women ‘merely entering’ into constitutional discussions raises the profile of women’s rights and the status of women within the wider polity. For example, during the US Equal Rights Amendment debates, women’s ‘status and profile’ were raised (Skeet, 2007: 151). Other studies have highlighted how participation in public sphere constitutional debate can lead to favourable constitutional outcomes for women as was the case in Canada (Haussman, 1992; Skeet, 2007). Therefore, involvement in debates about constitutional change acts ‘both internally on the women’s movement and externally on constitutional institutions’ (Skeet, 2007). In addition, there is ‘mounting evidence that women’s representation results in more equitable legal frameworks, more inclusive social and economic reforms’ (Houlihan, 2020).

The public sphere is also a space wherein identities are pre-constituted through historical narratives, in this case gendered narratives, and reconstituted through the very process of participation in public debate, including constitutional debate. For example, the case studies of women’s participation in constitutional public debate discussed above illustrate how wider constitutional debate can provide openings for women to push beyond familial understandings of women to a new conception of women as political activists, and as rights-bearing and rights-seeking subjects. The feminist campaign for the repeal of the Eighth Amendment also reformulated public conceptions of Irish women’s identities. That campaign challenged hegemonic constructions of women’s identities as needing ethical oversight and regulation by a historically patriarchal Irish state. The campaign reframed women as autonomous moral subjects who should be free from state regulation over their moral decisions and their bodies (Ashe, 2019: 170). Todd (2021) has engaged with the (re)formation of identity through participation in constitutional debate, and while she concentrates on unionist identities, her analysis has important insights for feminism.

Todd (2021) argues that identities are not static: they change and shift historically. She (2021) argues that new unionist identities can be forged within the constitutional discursive space that has opened around Irish unity. ‘The very process of deliberation on these principles is likely to facilitate iterative identity change’ (Todd, 2021: 25). Her focus is on a new Ireland and new identities forged through inclusionary dialogic processes. Unionist engagement in discursive processes enables the development of new concepts of unionist identity and its relationship to the nation allowing movement away from the ‘two traditions paradigm (Todd, 2021: 21) and towards a ‘New Island Paradigm’ (2021: 19).

Respecting diversity and the inclusion of multiple identities, for Todd, in modelling a new Ireland breaks down the historical ethno-nationalist binary. Identity formation and reformation in the new discursive constitutional space is not limited to unionist identities in this model of public debate. Todd (2021) envisages a new pluralist dialogic space, and she argues that engagement in that space reshapes identities and relationships between identities, which in turn reshapes national values and conceptions of national citizenship:

Ideally, unionist culture(s) would become part of a complex cultural mosaic, in which the culture(s) would evolve and from which all would benefit. This would engage a multiplicity of voices – from immigrant and traveller communities to gendered, class-based, ecological and other movements, such that the southern nationalist consensus would itself be diversified and no longer a threat to a unionist minority (Todd, 2021: 16).

Todd’s (2021) intervention is an important one for historically marginalised groups. While one of her key concerns is to promote unionist inclusion in an evolving vision of a new Ireland, she highlights the benefits of a wider participatory and inclusionary approach to constitutional change. Shifts in ethno-nationalist identities in this model of constitutional change are dependent on their engagement with a range of historically disadvantaged others within the nation. She moves analysis away from revolving around sedimented identities and binary frameworks towards recognising multiple and shifting identities. The framework recognises the participation and inclusion of multiple identity groups as an important ethical value and one that can reformulate national ethics and more complex visions of constitutional change.

An understanding of identities in progress within the space of constitutional debate is attractive for those concerned with advancing gender equality through constitutional discussions. Pluralism and participation can break down the old identity divisions, facilitate new understandings of identity and create a national culture beyond the two traditions wherein multiple groups define the nation’s values. However, the potential for and outcomes of this kind of inclusionary process brings us back to the issue of power relationships between identities. Women can make gains through participation in public sphere debate but always under the conditions of historical gender inequalities.

Inclusion in a Gendered Public Sphere

Fraser (1990: 77) argues that ‘an adequate conception of the public sphere requires not merely bracketing, but rather the elimination, of social inequality’. As such (1992: 77), she highlights the need to understand and critique ‘actually existing democracy’. The ‘actual’ public sphere is as much a space for domination as it is for open debate. Women entering the public sphere, enter as subjects positioned in a complex nexus of power relationships that created historical notions of public man and private woman overlaid by marginalisation, elisions and silences around gender injustice. Women in NI have challenged and continue to challenge the historical public/private gender divide by making claims in the public sphere, but they make those claims as gendered subjects whose historical positioning means they must mediate gendered hierarchies, narratives and institutions just as they had to during the period of the peace agreement. There is no level playing field in the public sphere. From a feminist standpoint, this insight must be the starting point for assessing issues of participation and inclusion in constitutional debates.

Grassroots women may be invited to participate in public sphere debates by those seeking to promote inclusive debate, but ethno-nationalist groups will remain key stakeholders in constitutional discussions and/or negotiations. Women concerned with gender equality have been invited into the conversations on constitutional change by those advocating for that change, but the problem remains that even if women are included their perspectives are likely to carry less weight than those of other groups especially in a deeply divided society. Women making claims for gender justice in any dialogic processes be it at elite levels or within the wider public sphere will struggle for recognition of their standpoints even if they are called on to participate in those processes. Progressive transitions from conservative constitutions of gender identity will struggle against the old ideology that frames women as apolitical and their concerns as peripheral in relation to the constitutional question. To achieve an equitable participatory and pluralist arena of constitutional deliberation will be difficult, given the range of barriers to women’s, and particularly grassroots women’s inclusion. Recent research (Ashe et al., 2022) explored the barriers to grassroots women inclusion in on-going constitutional debates in NI and ROI. Research respondents argued that women at the grassroots are not considered as representing the authoritative voice in political debate and are therefore dismissed as relevant political actors. Fear of speaking about such a contentious political issue and a lack of accessible safe spaces for women’s conversations were identified as significant barriers. Lean staffing models and an overall lack of funds mean that the women’s sector in general works from a low resource base. Resistance to integration into more dominant frameworks and approaches to constitutional debate as they try to build cross-community alliances between women also affect women’s inclusion. Women’s positioning outside the main centres of influence may make it more difficult to translate civil society participation into the power to influence constitution-making and constitutional norms.

Conventional routes or modes of participation in the debate may not engender the inclusion of groups of women. Reflecting Wojciechowska's (2019) emphasis on the importance of intersectionality in deliberative forms, the issue of inclusion is particularly pressing in relation to unionist women located in a broader, hierarchical and ethno-gendered group with deep historical anxieties about constitutional change (Aughey, 2005: 127). As explained above, political unionism opposes unity and has been reluctant to participate in discussions around it. While only including male members of the unionist community, Daly’s (2019: 5−8) research found that unionism feared Irish unity would erase their identity; promote triumphalism; provoke acts of retribution on former members of security forces; and lead to land grabs, a return to violence and control by the EU. However, those working with women’s groups on the ground have found that unionist women will engage in conversations and cross-community conversations about Irish unity and constitutional issues in NI more generally. However, these conversations required the creation of safe spaces for women and sensitivity to the diversity of women’s constitutionally based identities and desires (Ashe et al., 2022; Rooney et al., 2020: 87−99).

Moreover, due to marginalisation from formal political forums, women often use less conventional methods of political campaigning (Kostovicova and Paskhalis, 2021). Those methods need to be placed on a par with more conventional methods, given visibility and legitimacy and most importantly recognised and absorbed into broader conversations by those encouraging women’s participation. Formal and more informal modes of activism are likely to emerge. If we examine recent struggles by women for justice in the public sphere on the island of Ireland, it is evident that a range of women in both jurisdictions have told their stories publicly exposing injustice, generating wider support for redress and challenging official narratives, for example, Tuam Home Survivors Network (2021). Women’s stories in Ireland, North and South have engendered public sphere dialogic values, such as empathy, and consideration of the histories and experiences of others. These values will be important in the developing discussions around unification in terms of encouraging less divisive dialogic norms in debates. The insight has led to calls for a recognition of the value of diverse models of communication in a democratic discussion, such as rhetoric, narratives and storytelling (Kostovicova and Paskhalis, 2021, also Sanders, 1997), again exposing that understandings of dialogue need to be widened and reassessed by those seeking to facilitate women’s participation. An increasingly toxic political culture that seeks to silence women in public debates will also need to be confronted (Martin, 2018). The more poisonous the debate around constitutional change, the more likely opportunities for campaigning for gender justice will be foreclosed.

Parvin (2018: 32) suggests wide and deep participation by citizens in public debate reflects ‘a vision of democracy in which individuals engage actively with one another within and through a network of civil associations, groups, and organisations which mobilise political action, provide political information, and communicate collective concerns to decision makers’ (see also Fraser, 1990). However, the continuing barriers to women participating in this sphere means that constitutional debates are likely to marginalise women and relegate their demands for gender justice to second- or third-order claims. To address these gender dynamics, the actual position of women needs to be recognised in debates on inclusion and participation in constitutional debate. They are not equal partners in these debates and are currently a long way away from that ideal. To promote that kind of equality, recognition of the social position of women, a redistribution of resources and a clear set of principles to act as a foundation to facilitate women to represent their constitutional positions safely and securely in spaces they are involved in shaping will be required (Ashe et al., 2022: 2−4).

Conclusion

There has been a rise in ‘global paradigms linking [political] legitimacy to participation and representation’ (Houlihan, 2020), and it seems clear that these paradigms have influenced discourses on constitutional issues in NI and the ROI. They are evident in discussions around the usefulness of citizens’ assemblies to address citizens’ marginalisation from government decision-making and in calls for the inclusion of a range of social groups, including women to participate in constitutional debates. While citizens’ assemblies may be valuable tools, in certain contexts and under specific political conditions, more reflection on the potential of these mechanisms to produce gender-sensitive recommendations in relation to the constitutional question in NI is required. Broader narratives around the ideals of participation and inclusion in political debates have also encouraged discourses around women’s inclusion in constitutional debates more broadly in the public sphere. Inviting women to participate in discussions about constitutional change can be considered a positive and progressive sign. It indicates that key stakeholders understand the historical marginalisation of women from constitutional debate and constitution-making, and place a premium on their inclusion. However, the ideals of participation and inclusion must be located within broader power structures; otherwise they risk becoming simply signifiers with no grounding in the reality of people’s lives. Women being forced to leave constitutional debates through a lack of resources as happened during Ireland’s constitutional convention, and threatened for participating in public political discussion are examples of how the ideals of inclusion and participation actually operate (O’Leary, 2019).

The invitation to participate is one aspect of inclusion, addressing the socio-economic and cultural barriers to women’s inclusion is a different and more difficult matter, and it is essential that the invitation is accompanied by advocation of more substantial resources, political legitimacy and forms of influence for women at the grassroots level. As suggested above, the need for citizens’ assemblies on gender issues expressly reflects these dynamics and highlights the failure of governments to legitimise and respond to the recommendations of the women’s sector. Citizen’s assemblies on gender issues are a symptom of the de-legitimisation of women’s advocacy for change.

This article suggests that debates on constitutional change or retention of the constitutional status quo in NI need to move beyond the concepts of participation and inclusion towards a framework that recognises women’s right to share influence in shaping the society and any new visions of that society that may develop. It is essential that discussions on women’s participation and inclusion in constitutional debate are not isolated from the broader gender power relationships that shape the possibilities for the actualisation of those ideals. A significant amount of work by the key stakeholders is required in relation to all these concerns. The desire for pluralism requires a significantly expanded agenda. Without concrete interventions designed to address deep, historical relationships of gender power, the terms participation and inclusion will remain hollow ideals.

Footnotes

Acknowledgements

I wish to thank the Department for Foreign Affairs, Ireland and the Joseph Rowntree Charitable Trust who have generously supported my research on gender and constitutional change. Thanks also to my colleagues Eilish Rooney and Joanna McMinn who were involved in those funded projects and to Rory O’Connell for on-going encouragement. Cillian McGrattan’s comments on an earlier version of the article were also appreciated.

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: The article is an output from two broader projects funded by the Department of Foreign Affairs and the Joseph Rowntree Charitable Trust.

ORCID iD

Fidelma Ashe

Notes

Author Biographies

Fidelma Ashe is professor of politics and a member of the Transitional Justice Institute (TJI) at Ulster University. She has published widely in the area of gender studies.

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Gendering Constitutional Change in Northern Ireland: Participation,Processes and Power

Abstract

Keywords

Introduction

The Constitutional Question

Gendering Constitutions

Direct Democracy

Citizens’ Assemblies and Gender Justice

Gender Inclusion and Constitutional Debate in the Public Sphere

Inclusion in a Gendered Public Sphere

Conclusion

Footnotes

Acknowledgements

Declaration of Conflicting Interests

Funding

ORCID iD

Notes

Author Biographies

References