THE LEGAL right of Portmarnock Golf Club to restrict its membership to “gentlemen” was confirmed by a majority of the Supreme Court yesterday, by a three to two decision.
Mr Justice Adrian Hardiman, Mr Justice Hugh Geoghegan and Ms Justice Fidelma Macken agreed with the High Court decision that the club was not a “discriminating club” under the Equal Status Act, while Ms Justice Susan Denham and Mr Justice Nial Fennelly disagreed.
The court dismissed the appeal from the Equality Authority.
The Act permits discrimination in favour of a particular group, including a gender, if the “principal purpose” of the discrimination is “to cater only for the needs” of that group or gender.
In 2004 the District Court found Portmarnock’s principal purpose was the playing of golf, not catering only for the needs of men, and that it was therefore a discriminating club, which meant it was liable to lose its drink licence. The club appealed successfully to the High Court, which held that the primary purpose of the club was to cater for the “needs” of “male golfers”.
Mr Justice Hardiman said that the ordinary, natural and literal meaning of the word “needs” was broad enough to embrace social, cultural and sporting needs as well as more basic needs for things such as air, food and water. It was very significant the authority was unable to point to a single club, “real or imaginary”, which could come within the exemption on the authority’s interpretation of that section, he said.
Mr Justice Geoghegan described as “extraordinary” the fact that, where a club is found to be discriminatory, the only sanction that may be imposed on it under the Act is withdrawal of its drinks licence (if it has one). If it chose to lose its licence, a club could continue to discriminate without penalty for ever.
This seemed to reflect justified nervousness by the drafters of the Act of encroachment on the constitutionally protected right to freedom of association, he said. This “tiptoeing” by the drafters had created real problems of interpretation of the Act.
Ms Justice Fidelma Macken did not deliver a written judgment.
In his dissenting judgment, Mr Justice Nial Fennelly said it was “preposterous, unreal and implausible” for the club to contend its principal purpose was to cater for the needs of men, as permitted by the exemption in the Act, rather than the playing of golf. The High Court had wrongly equated the purpose of a club with its membership rather than with its activity.
Ms Justice Susan Denham said it was clear from the club’s rules its primary purpose was the playing of golf.