The High Court ruling that Portmarnock Golf Club, by refusing to admit women as either members or associate members, is not in breach of the Equal Status Act, has come as a disappointment to many.
It has been welcomed by Portmarnock Golf Club, and undoubtedly is also welcomed by other clubs that restrict membership.
The Equality Authority took the case against Portmarnock in changing social circumstances which no longer see the upper echelons of business and the professions almost closed to women. Certain sporting organisations play an important role in business and professional networking, as well as offering a recreational outlet to their members. The restriction of their membership to men only is widely seen as excluding women from the professional and business advantages that membership could bring.
The Equal Status Act permits single gender clubs, provided they are formed to cater for the specific needs of either women or men. The Equality Authority argued that these needs could not be so broadly defined as to cover a sport played by both men and women.
The District Court agreed, and Portmarnock was found to be a discriminating club under the Act. This had the effect of suspending the certificate of registration for a period of 30 days, though this was not implemented pending the appeal decided last week. Suspension of a club's licence has the effect of preventing it from serving alcohol for that period. Thus the legislation does not prevent a discriminating club from existing, it only withdraws from it the State advantage of a licence to sell alcohol.
In challenging the District Court decision, Portmarnock Golf Club sought to challenge the constitutionality of the Equal Status Act, claiming it contravened the right of freedom of association. Crucially, the High Court disagreed, stating that the Oireachtas is entitled to legislate positively to vindicate and promote the value of equality in the legislation - including to restrict the freedom of association.
What remained to be decided was the interpretation of the section of the Act that allows for clubs to discriminate. Mr Justice O'Higgins found that it was permissible for certain groups of people to join together to engage in social or sporting activities, without infringing the Act.
It remains to be seen whether this interpretation will be appealed. Whatever happens, the Equality Authority is to be commended for taking this case and seeking to explore the limits of permissible discrimination, especially when, however indirectly, this brings real advantage to one group over another.