THE SUPREME Court has been urged by the Equality Authority to rule that Portmarnock Golf Club is a discriminatory club under the Equal Status Act on grounds its "principal purpose" is to play golf and not, as the club claims, to cater only for the needs of men.
"Golf is not a need that is peculiar to persons of the male gender," Frank Callanan SC, for the authority, argued yesterday.
Counsel was making submissions before the five-judge court on preliminary issues in the appeal by the authority against a High Court decision of 2005 that Portmarnock Golf Club, although 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 Equal Status Act 2000.
Prior to the full appeal, the court is hearing submissions on the interpretation of Section 9. The preliminary hearing opened yesterday and Mrs Justice Susan Denham, presiding, said it will resume on a date next month yet to be fixed.
Section 8 of the Act provides a club shall be considered a discriminating club if it has any rule, policy or practice which discriminates against a member or an applicant for membership. Section 8 also provides for the suspension of the registration of such a club, with the effect it would be unable to secure a drink licence. Section 9 of the Act provides, for the purposes of Section 8, 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".
All parties to the case agree Portmarnock, established in 1894 and now with 625 members and 625 associate members, is a discriminating club in the colloquial sense in that one of its rules limits membership to "gentlemen".
The legal dispute is whether it is a discriminating club under the Act and such a finding will depend on the court's interpretation of the meanings of "principal purpose", "cater only" and "needs" in Section 9.
In her decision on District Court proceedings brought by the authority in early 2004, Judge Mary Collins ruled Portmarnock was a "discriminatory" club not exempt under Section 9 after finding its "primary purpose" was to play golf and not, as the club argued, to cater for the needs of male golfers.
She suspended the club's drink licence for seven days but that suspension remains deferred pending the outcome of the Supreme Court appeal. In the full appeal, the Equality Authority has filed 28 grounds while the club has cross-appealed against the High Court's rejection of their arguments that Sections 8 and 10 of the Act amount to an unconstitutional interference with the right of free association with persons and to freely dissociate from others.
Yesterday, Mr Callanan said the authority's case was that the club's principal purpose was to play golf and this was not a need peculiar to men, so the club was not entitled to an exemption. The club's claim that its principal purpose was to cater for the needs of men was also weakened by the fact it allowed women to use its facilities and it would have a stronger case if it totally excluded women, he added.
Portmarnock, he argued, is a golf club, not a social club or a club created for pure male society or companionship. It might have ancillary social activities but its principal purpose was the playing of golf. The court should also construe the words "needs" in Section 9 as being related to that principal purpose and golf was not the need of one particular gender.
In interpreting Section 9, the court must consider the legislature's intention as a whole in enacting the Equal Status Act and should presume the legislature did not intend Section 8 should be rendered void by Section 9. The court must presume the legislature did not intend "futile" results.
Other golf clubs had not found it was "subversive" to admit female members or have female officers, he said.
Opening his submissions late yesterday, Donal O'Donnell SC, for the club, argued its "principal purpose" is "to cater only for the needs of men" while its principal activity is golf. The use of the words "cater for" was important, this was a phrase in common use, and its use in connection with the words "needs" meant the court should read "needs" not as felt needs or necessities of life but referring to social and recreational needs.
This interpretation was supported by the fact Section 9 was referring to clubs and recreation was the principal focus of Section 9, he said. The question the court must ask was not what the club does but who it caters for, he argued.
