The Government has decided to revise the Irish wording for the Marriage Referendum after criticism over the first version published.
In preparing the first draft particular wording and phrasings were used in an effort to avoid breaking with the consistency of language in use throughout the text which I previously discussed here.
The new wording which is to be inserted by a Committee Stage amendment to the Thirty-Fourth Amendment of the Constitution (Marriage Equality) Bill 2015 is;
“Féadfaidh beirt, gan beann ar a ngnéas, conradh pósta a dhéanamh de réir dlí.”
This new version is much closer to the proposed English text and a literal translation of the new Irish text into English would read along the lines of the following;
“Two persons may, without regard to their sex, make a contract of marriage in accordance with law.”
In using this formula of words the Government have rowed back against the previous attempt to maintain consistency in the Irish text of the Constitution and have embraced the literal translation approach which traditionally has been avoided.
The word “beann” which the authoritative Ó Dónaill Dictionary translates as “regard” or “dependence” is not used elsewhere in the Constitution or indeed in legislation in Ireland nor does it appear in Téarmaí Dlí the Irish language legal terms order. “Beann” is used because the commonly used Irish wording for “without distinction” (“gan idirdhealú”) is already used in the Constitution in Article 44.2.3 to represent “discrimination”. Whilst there is some use of the term “Beann” in legislation it only occurs in legislation dealing with place names containing the word Beann such as Beann Éadair (Howth). Elsewhere in the Constitution the English word “regard” which is the closest representation to “beann” is represented differently e.g. in Article 40.3.3 “due regard” is represented as “ag féachaint go cuí” and in Article 34.4.5 “having regard to” is represented as “ag féachaint d[o]” .
“Gnéas” is used to represent the word “sex” and again this term is not used elsewhere in the Constitution nor does it appear in Téarmaí Dlí. “Gnéas” is however extensively used in legislation and other official legal translations to represent “sex”. Article 16.1.3 uses the expression “toisc gur fear nó toisc gur bean an saoránach sin” to represent “on the grounds of sex” and Article 16.1.2 uses the now infamous and rejected “cibé acu is fear nó mná” expression to represent “without distinction of sex” whereas Article 16.1.1 uses the same formula but this time in the singular. Article 9 represents “the sex of such person” as “toisc gur fireann nó toisc gur baineann an duine sin”. In each case due to slightly different usages in the English language the Irish text is altered to represent the precise legal aim which is being sought and is in no circumstances a direct translation, the use of “gnéas” is a departure from this style.
Interestingly Article 45.4.2 which, by its own terms is not cognisable by any Court, uses the expression “gné” to represent “sex” . Ó Dónaill translates “gné” as “species” or ” kind”. Today this word is used mostly in Irish, both in the vernacular and in legal terminology, to represent aspect or appearance.
While the new wording is a better attempt at a literal translation it does open up some questions about how we draft amendments and the type of language we should use. I have previously argued that co-drafting by lawyer linguists would produce the best outcomes and it was at least a positive development to see the Taoiseach make some soundings in this direction.