DISSENTING JUDGMENTS:PORTMARNOCK GOLF club may restrict membership to men only if its principal purpose is to "cater ONLY for the needs of men" but it is "preposterous, unreal and implausible" for the club to contend its principal purpose is other than the playing of golf, Mr Justice Nial Fennelly said.
He was giving one of two judgments dissenting from the majority Supreme Court view that Portmarnock Golf Club is not a discriminating club under the Equal Status Act (ESA).
In her dissenting judgment, Mrs Justice Susan Denham said it was clear from the club’s rules its primary purpose is rather the playing of golf and, because it caters for men and women golfers in different ways (excluding women from membership while permitting them to use the course and clubhouse facilities), it is a discriminating club under the ESA.
Both judges also said the High Court had erred in failing to interpret the Act purposively as legislation enacted with an objective of achieving equality.
Mrs Justice Denham noted that the Equality Authority argued the Act was intended to address discrimination in specific fields of society, including membership of sporting clubs, particularly golf clubs, as many allowed women only a limited membership and others completely barred women.
She disagreed that the Act was limited to preventing discrimination within clubs eg, preventing women using the bar.
The issue was not that Portmarnock was a single-gender club, as the Act permits single-gender clubs but only where their primary purpose was to cater for that single gender, the judge stressed.
The issue was whether the club was entitled to an exemption from the general ban on discrimination in the Act. Interpretation of sections 8 and 9 of the Equal Status Act were at the core of the case. Section 8 prohibits gender discrimination, among other forms of discrimination, and provides for the withdrawal of the drinks licence of a discriminating club.
Under Portmarnock’s rules, only “gentlemen” may be members and ladies are excluded from membership. This was gender discrimination and therefore Portmarnock was a discriminating club under section 8.
Section 9 provided some exceptions to that ban on discrimination and provided a club shall not be considered to be a discriminating club “if its principal purpose is to cater only for the needs of . . . persons of a particular gender”.
The judge ruled that Portmarnock’s principal purpose was golf. It was notable section 9 had the word “only” after the words “to cater” and this meant the club would be catering only for a specific group, she said. Portmarnock caters for men and women but does so differently in that women are not excluded from the club but are excluded from membership.
She ruled that Portmarnock’s principal object was golf and there was no logical connection between that and the male gender on the facts of the case. There were no “needs” connected to the male members entitling the club to the exemption under section 9.
Even if section 9 was ambiguous, and she believed it was not, the 2000 Act should be interpreted purposively and in accordance with the intention of the legislature as a remedial social statute aimed at promoting equality.
Mr Justice Fennelly said the High Court had wrongly equated the purpose of a club with its membership rather than with its activity.
