The High Court has declared that Portmarnock Golf Club, which does not permit women to join as members, is not a "discriminating" club under the terms of the Equal Status Act, 2000, because it falls within an exception provided for in that Act.
Mr Justice Kevin O'Higgins said yesterday the promotion of equality and the prohibition of types of discrimination, the express purposes of the Equal Status Act, were "legitimate and laudable" goals of legislation.
However, the club's interpretation of the Act - that it was not discriminating because its principal purpose was to cater for the needs of male golfers - did not undermine those aims but rather recognised the fact there was "nothing inherently undesirable with persons seeking, in a social context, the society of persons of the same gender or the same nationality or the same religion".
In a tolerant, free and increasingly diverse society, it was not surprising to have the type of exceptions as envisaged by Section 9 of the Equal Status Act. It provides that a club may be considered not to be discriminating if its "principal purpose" is to "cater only for the needs" of persons of a particular gender, he said.
As a result, it was permissible to have a bridge club for Bulgarians, a wine club for women and a golf club for gentlemen.
In a reserved judgment on proceedings between the Equality Authority and the club, which centred on the interpretation of Section 9, the judge upheld a claim by the club that in light of the section's provisions, the club "shall not be considered a discriminating club" under Section 8.
Section 8 provides that 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, or if a person involved in its management discriminates against a member or applicant for membership in relation to the affairs of the club.
Section 8 also provides that where a club refuses to admit a person to membership or provides different terms and conditions for members or applicants for membership, such acts are evidence of a discriminating club.
In the light of his agreement with the club on the interpretation of Section 9, the judge said, he had not proceeded to make findings on constitutional issues raised. However, he had made observations on those issues in which he disagreed with the club's interpretation and favoured the interpretation of the Attorney General.
The constitutional issues related to claims by the club that in the event it was held to be discriminating under the Equality Status Act, then Sections 8, 9 and 10 were unconstitutional.
Mr Justice O'Higgins rejected the club's claim that the Equal Status Act attempts to coerce persons to waive their freedom of association. In his view, the Oireachtas was entitled to legislate positively to vindicate and promote the value of equality in the legislation promoting those values, which may legitimately have an effect on private individuals.
Proceedings were adjourned to June 15th to allow the parties to consider his 46-page decision and to address the issue of costs.
The dispute between the Portmarnock club and the Equality Authority related principally to rule 3 of the club which states: "The club shall consist of members and associate members . . . who shall be gentlemen properly elected and who shall conform with the rules of amateur status."
The Equality Authority initiated proceedings against the club in May 2003, in which it sought a declaration that the club was discriminating under the Act.
In February 2004 Judge Mary Collins suspended the club's drink licence for seven days after she found that its rule excluding women was discriminatory. The suspension was subsequently deferred pending the outcome of the High Court proceedings.
Judge Collins said the issue was the interpretation of Section 9. She proposed to give the words of Section 9 their literal meaning.
She held that the principal purpose of the club was to play golf, that the words "to cater for" were to provide what was needed or required and that "needs" were what was wanted or required.
She believed the ordinary words of Section 9 did not attribute to men's golf a special need and held that the club was discriminating under Section 8 and did not fall within the exception of Section 9. That decision was referred to the High Court.
