The Supreme Court, Equality, Golfing and ‘Need’

UPDATE: The full text of the judgment (4 opinions) is now available here. (h/t Vicky Conway)

The Irish Times reports today that  the Supreme Court has held that Portmarnock Golf Club is not a “discriminating” club under the Equal Status Act. Women are permitted to play at Portmarnock but may not become full members. By a majority of three to two, the Supreme Court upheld a 2005 High Court decision (Equality Authority v. Portmarnock Golf Club & Ors [2005] IEHC 235 (10 June 2005) that the club, while refusing to admit women as members, is not a “discriminating” club under the Act because it fell within exemption provisions in Section 9 of the Act. Section 9 provides that a club “shall not be considered to be a discriminating club…if its principal purpose is to cater only for the needs of persons of a particular gender..\[or] it refuses membership to other members”. There is an account of some of the argument in the Supreme Court here. The Times reports quotes from the judgments of Denham and Hardiman JJ (pictured at left)

The authority argued the club is a discriminatory club under the Act on grounds its “principal purpose” is to play golf, not to cater only for the “needs” of men. The club contended its principal purpose was to cater only for the golfing needs of men.

In his judgment allowing the appeal, Mr Justice Hardiman said the club argued it was a gentlemen’s golf club, a golf club for gentlemen. The authority said 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 embrace social, cultural and sporting needs as well as more basic needs for things such as air, food and water, the judge said.

In his view, the authority’s construction of the term needs was “a narrow, outdated and unnatural one”.

Dissenting, Ms Justice Denham said she was of the view the principal purpose of Portmarnock golf club was golf and that it catered for the needs of men and women, not just men.

A spokesman for the Equality Authority said the authority welcomed the fact that the Supreme Court had now clarified the law and said the Oireachtas could now examine whether or not the Equal Status Act needed to be amended. Joanna McMinn of the Equality Rights Alliance said the law needed to be changed and the decision was a bad day for equality and a bad day for women. Commentaryto follow when the judgment is published in full. Back at the time of the High Court decision, the Equality Authority were closer to the mark:

The Judgement maintains an unsatisfactory status quo. A significant institution in our society can continue to exclude women from membership. It can continue to set a standard that runs counter to any aspirations we might have as a society for greater equality between women and men. This is unsatisfactory in a context of significant and persistent inequalities experienced by women in a broad range of sectors. We still hope that Portmarnock might consider their options and change their membership rules so as to establish a new and more acceptable standard in regard to gender equality

Update 2:

• Mr. Justice Geoghegan latched on to one of the stranger aspects of this body of law. “He 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 “tiptoeing” by the drafters had created real problems of interpretation of the Act.” The link also covers Mr. Justice Hardiman’s sharp criticisms of the Equality Authority.

Update 3:

Lots of coverage in Wednesday’s papers:

• Carol Coulter in the Irish Times says that ‘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.’ The Equality and Rights Alliance make the same point.
• The members of Portmarnock golf club talk about ordinariness and common sense here
• The Times also gives a summary of the dissenting judgments here while the Examiner has a pithy quote from Denham J. : “Portmarnock Golf Club is exactly what its name says – a golf club in Portmarnock,” she said.

http://www.irishtimes.com/newspaper/ireland/2009/1104/1224258028551.html