The High Court decision concerning Portmarnock Golf Club is not just about golf - it's about excluding women from the social and business benefits that can go with it, writes Niall Crowley.
Yesterday Portmarnock Golf Club secured a declaration from the High Court that they are not a discriminating club within the meaning of section 8 of the Equal Status Acts, despite its male-only membership.
The District Court had found that Portmarnock Golf Club was a discriminating club. Portmarnock Golf Club challenged that finding and also argued, unsuccessfully, that their male-only policy was protected by the Constitutional right to freedom of association.
The Equality Authority had issued proceedings against Portmarnock Golf Club under section 8 of the Equal Status Act in June 2003.
The Equal Status Acts make particular provisions in relation to registered clubs - clubs that hold a licence to sell alcohol.
The Equal Status Acts do not prohibit discrimination by such clubs. Clubs are allowed to discriminate and male-only clubs are allowed.
However, if they are found by a judge of the District Court to be a discriminating club for the purposes of the Equal Status Act, then the certificate of registration of the club will be suspended for up to 30 days.
The effect of this is that a club will continue to operate but it will lose its licence to sell alcohol. While a second or subsequent determination that a club is a discriminating club remains in effect, no certificate of registration may be granted or renewed.
There is an exemption to this provision which was relied on by Portmarnock Golf Club. Section 9 of the Equal Status Act provides that a club shall not be considered a discriminating club where its principal purpose is to cater only for the needs of a particular gender.
In February 2004 the District Court found that Portmarnock Golf Club was a discriminating club under the Equal Status Act and that Portmarnock Golf Club could not rely on the provisions of the section 9 exemption. Their licence was suspended for seven days, but this was not activated pending the High Court action.
The Equality Authority had successfully argued that the principal purpose of Portmarnock Golf Club was to play golf.
This principal purpose is reflected in the rules of the club and the purpose of the club is similarly described without any qualification in documents presented to the Revenue Commissioners in support of a tax-free status.
The Equality Authority also argued that the fact that Portmarnock Golf Club caters for women golfers as well as men golfers runs counter to any claim that Portmarnock Golf Club's principal purpose is to cater for the needs of male golfers.
Disappointingly the High Court decided on a broader interpretation of men's needs than that used by the District Court. In effect the High Court judge has interpreted men's needs so broadly as to include sporting needs.
Portmarnock Golf Club also challenged the constitutionality of the provisions of the Equal Status Act 2000 in relation to registered clubs.
They sought to rely on the constitutional right to freedom of association to defend and protect their practice of excluding women from membership of the club. The judge unambiguously rejected these arguments. The outcome of the High Court proceedings in relation to Portmarnock Golf Club highlights that the Constitution does not require the law to protect male-only golf clubs.
Mr Justice Kevin O'Higgins stated that: "In my view, however, the Oireachtas is entitled to legislate positively to vindicate and promote the value of equality in the legislation promoting those values, that may have an effect on private individuals.
The question of balance between such competing constitutional rights is primarily to be resolved by the Oireachtas."
The High Court judge did not accept that the constitutional right to freedom of association precluded "the enactment of legislation to achieve equality".
This element of the judgment is a welcome and valuable outcome of the proceedings.
It will assist the effective implementation of equality legislation into the future. It creates a context that will assist an ambition in the further development of equality legislation.
However, the judgment of the High Court declaring that Portmarnock Golf Club is not a discriminating club is disappointing in that it maintains a very unsatisfactory status quo.
A significant institution in society is allowed to continue to exclude women from its membership and from the benefits that would flow from membership. These benefits go beyond a role as members in decision-making within the club. They include access to the social and business benefits that flow from full entry into what is a network of powerful and influential men.
The issue however goes further. Portmarnock Golf Club is effectively allowed to continue to set a standard that is inimical to any aspirations we might have as a society for greater equality between women and men.
This is particularly unfortunate in a context where women continue to experience significant and persistent inequalities in business, politics and wider social life.
The Equality Authority is now considering the judgment to explore what options are now open to us and what the most appropriate course of action might be.
It would indeed be valuable were Portmarnock to take the opportunity to similarly explore their options. It would be hugely positive were Portmarnock Golf Club to reconsider their membership policy and thus contribute to a new standard for equality between women and men in Irish society.
Niall Crowley is chief executive of the Equality Authority