Being female still handicap as judgment puts men first
TO SET in context yesterday’s Supreme Court judgment upholding the right of Portmarnock Golf Club to exclude women from full membership, you have to consider the situation in Irish golf a decade ago, writes CAROL COULTER
Then, about 400 golf clubs existed, most of which restricted full membership to men, with a reduced category of membership or access for women. In practice this usually meant that women could only play at certain times (for example, during working hours on week days) when the course would be in little demand from the predominantly working male membership.
Membership of golf clubs is widely seen as conferring real, if intangible, benefits. Contacts are made, information is exchanged, deals are made, on the golf course and over a few drinks in the clubhouse afterwards. The holding of the status of a registered club, permitted to have a bar and sell drink, is therefore a crucial aspect of a club’s existence. Registration as a club also carries the considerable benefit of the non-taxation of profits on the running of the bar.
All of these benefits are amplified in the case of an old and venerable institution like Portmarnock Golf Club in Co Dublin, described by Mr Justice Fennelly yesterday as “a national institution”, which numbers among its members former and present leading politicians, prominent members of the business community, consultants, judges and diplomats.
Unsurprisingly, during the 1990s many women interested in golf, particularly those who worked, sought full membership of their local golf clubs. Debate raged in golf clubs throughout the country as to whether they should be permitted to join.
Many clubs in due course changed their rules. According to the Equality Authority, in 2002, the year it embarked on its case against Portmarnock, it had nore than 100 complaints about registered clubs, each made on behalf of groups of complainants. It entered into correspondence with a large number of them, including Portmarnock. Some changed their rules, but not Portmarnock.
The authority then took and won a case in the District Court seeking a declaration that Portmarnock was a discriminating club under the Equal Status Act, with the automatic outcome that it lost its drinks licence. The club appealed to the High Court, which found in its favour. This outcome was appealed to the Supreme Court, which yesterday upheld the High Court judgment by a majority of three to two.
However, following the taking of the case to the District Court, all 400-odd golf clubs changed their rules to permit women members, with two exceptions – Portmarnock and the Royal Dublin, based in Bull Island.
The Equal Status Act outlaws discrimination in the provision of goods and services on nine grounds, including gender. Section 5 of the Act makes it illegal to discriminate in offering services to members of the public; sections 8 and 9 deal with discrimination within voluntary associations and clubs.
The context in which the law was written, and in which this case was brought, is the constitutional guarantee of the right of freedom of association. People are entitled to meet together and form associations with people they like, or with whom they share common interests. Inevitably, this means they can exclude other people.
The problem for the drafters of the legislation was to ensure this did not allow people to be discriminated against because of their gender, sexual orientation, race, religion, or other attribute covered by the legislation. Sections 8 and 9 of the Act attempt to walk this tightrope.
Section 8 of the Act defines a club as “discriminating” if it refuses to admit a person because of one of the specified grounds, as Portmaranock does. If the law stopped there, the club would lose its drinks licence.
However, undoubtedly drafted with the Constitution in mind, Section 9 of the Act allows a club to escape this categorisation “if its principal purpose is to cater for the needs of... persons of a particular gender [or religion, sexual orientation, etc]”
The issue in the High Court, and then in the Supreme Court, was whether the principal purpose of Portmarnock Golf Club was “to cater for the needs of a particular gender” – that is, men. The Equality Authority argued that its principal purpose was the playing of golf, which was not a specifically male interest; the club argued it was to cater for the need of men to play golf. Comparisons were made with women-only book-clubs or gay rugby clubs.
Yesterday’s judgments dissected these arguments, defining the terms “primary purpose”, “cater for” and “needs”. Mr Justice Hardiman and Mr Justice Geoghegan, with whom Ms Justice Macken agreed, found that the club’s principal purpose was to cater for the needs of men, which could not be divorced from engaging in specific activities, like playing golf. It was not, therefore, a discriminating club.
Mr Justice Fennelly found its principal purpose was golf, quoting the rules of the club, which were adopted to permit it to admit people under 18 to a premises serving alcohol, and which stated it was “primarily devoted to golf, being an athletic purpose”. Mrs Justice Denham also found that the rules made this purpose clear. Therefore they held that restricting membership to men was discriminatory.
The implications for other clubs and associations are, so far, unclear. The Royal Dublin Golf Club will heave a sigh of relief. But there are some 398 other golf clubs whose male members seem no longer to have a specific need to play golf only with other men, and it appears unlikely that their memberships, which now include women, will vote to revert to the status quo of the 1990s.
Will this pave the way for Christian bridge clubs, for example, which by definition would exclude Jews and Muslims? Theoretically that is possible.
But who would bother? The unmentioned elephant in the court-room was the undefined, but undoubted, social and business advantages conferred by membership of a historically exclusive club, whose exclusivity was maintained by yesterday’s judgment.
Carol Coulter is Legal Affairs Editor