THE SUPREME Court has by a majority of three to two dismissed the Equality Authority’s appeal against a decision that Portmarnock Golf Club, which excludes women from membership, is not a “discriminating” club under the Equal Status Act.
The majority court yesterday upheld a 2005 High Court finding that the club is not a “discriminating” club. This was on grounds it falls within exemption provisions in Section 9 of the Act relating to clubs catering for the needs of people of one gender.
Section 9 permits single-gender and certain other clubs if the “principal purpose” of those clubs is to “cater only for the needs of” the particular gender. The sides had agreed Portmarnock, established in 1894 and now having 662 members and 625 associate members, is a discriminating club in the colloquial sense as its rules limit membership to “gentlemen”.
The legal dispute was whether it is a discriminating club under the Act and that depended on the court’s interpretation of the meanings of “principal purpose”, “cater only” and “needs” in Section 9.
The authority argued the principal purpose of the club was the playing of golf and there must be a logical connection between that activity and men before the exemption could be availed of. It argued there was no such connection, while the club argued its principal purpose was to cater for the needs of its male members.
The authority initiated court proceedings against the club in 2003. In 2004, the District Court found Portmarnock’s primary purpose was the playing of golf, not catering only for the needs of men, and it was therefore a discriminatory club, a finding exposing it to losing its drinks licence.
The club successfully appealed to the High Court, which overturned the finding of discrimination after holding the primary purpose of the club was to cater for the “needs” of “male golfers”.
In the Supreme Court yesterday, Mr Justice Adrian Hardiman, Mr Justice Hugh Geoghegan and Ms Justice Fidelma Macken agreed with the High Court, while Mrs Justice Susan Denham and Mr Justice Nial Fennelly disagreed.
The outcome means the club’s arguments as to the constitutionality of provisions of the 2000 Act will not have to be addressed. The issue of costs will be dealt with later.
In a judgment strongly critical of the authority, Mr Justice Hardiman said the club argued it was a golf club for gentlemen but the authority argued that could not be so within Section 9 because, in the authority’s view, the club provided facilities for the game of golf which was not a “need” of men. The ordinary, natural and literal meaning of the word “needs” is that set out in the Oxford English Dictionary and it was broad enough to to embrace social, cultural and sporting needs as well as more basic needs for things such as air, food and water, the judge said. The authority’s construction of the term “needs” was “a narrow, outdated and unnatural one”.
The authority’s approach was “wholly wrong-headed” and it was very significant the authority was unable to point to a single club, “real or imaginary”, which could come within the Section 9 exemption on the authority’s interpretation of that section.
The authority’s action in bringing the case against the club also raised “very fundamental questions” about the constitutional right of citizens to associate with each other and the powers of the State to regulate, penalise and discourage such association, “including the right to associate for purposes disapproved of by the political establishment, the ‘great and good in government’, the media, the quangos and elsewhere”, the judge remarked.
It was “quite extraordinary” for the authority to put taxpayers to the expense of litigation and to expose others to it when it manifestly ignored its own duty to produce a code which might have avoided litigation.
Mr Justice Geoghegan described as “extraordinary” the fact, 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 forever discriminate without penalty.
This seemed to reflect justified nervousness by the drafters of the Act of encroachment on the constitutionally protected right to freedom of association. This “tiptoeing” by the drafters had created real problems of interpretation of the Act.
On that same point, Mr Justice Hardiman said the drafters appeared to be saying: “We can’t stop you running a single-gender club but we will try to arrange you won’t enjoy it”, reflecting “a strikingly puritanical attitude”.
