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Ireland's political and cultural magazine
— December - January
Legal Golf
to play a version of golf
called ‘male golf’ and can, in order to realise
that need, run a golf club in which member-
ship is open exclusively to male players of male
golf on the understanding that the principal
purpose of that club is to cater only for the
needs of men. In practical terms, this means
they can have a legal drink after or even before
a game of male golf and cannot be punished
or deprived in this connection by operation
of some equality-proofed application of the
licensing laws. To do so would probably kill
the game of ‘male golf ’ while realising the
bolder dreams of golf egalitarians and some
golf widows. It is matterless that such clubs
allow women to play golf at appointed times
and provide female-only locker rooms to facil-
itate that privilege. That is purely a matter of
external relations and does not bear upon the
internal workings of private golf clubs which,
as well as benefi ting from club status, enjoy
certain tax advantages.
That, in a nutshell, is what a majority
(:) of the Irish Supreme Court decided in
November in a case taken by the Equality
Authority against Portmarnock Golf Club.
Four of the judges wrote individual judg-
ments with Ms Justice Macken agreeing with
the two who held in favour of Portmarnock.
The basis of her agreement with two diff ering
majority judgments (those of judges Hardiman
and Geoghegan) was not explained, which is
regrettable given the pivotal nature of her
‘swing vote’ with the majority. She needs to
work on her swing!
The majority judgment that has attracted
most attention is, unsurprisingly, that of
Mr Justice Adrian Hardiman. His judgment
is stinging in its criticism of the Equality
Authority for taking the case against
Portmarnock Golf Club and laced with the
rhetorical fl ourishes of a once-great advo-
cate. Holding in favour of Portmarnock Golf
Club he tears into the arguments presented by
Counsel for the Equality Authority, accusing
the Authority of seeking to have Portmarnock
‘condemned’ as a discriminating club.
What appears to animate his objection to
the case being taken in the fi rst place is the fail-
ure of the Authority to comply with a request
by a former Minister for Justice, Equality and
Law Reform to design a code of practice for
golf clubs instead of using targeted litigation
to address a particular form of gender discrim-
ination in a particular golf club. This, as Mr
Justice Nial Fennelly rightly points out, is not
relevant to a consideration of the central issues
raised in the Portmarnock case – whether or
not the club came within the exemption for
so-called ‘discriminating clubs’ provided for
by Sections and of the Equal Status Act.
In other words, the sections apply whether or
not a code of practice exists and do not exist as
some kind of default provision only to be used
in the event of non-compliance with a code that
enjoys no more than the status of soft law.
‘’
Equality authority loses case against Portmarnock golf club in Supreme Court
d o n n c h a o’c o n n e l l
Apart from the fact that Mr Justice
Hardiman’s point was irrelevant it was also
unfair. In the absence of any signifi cant
authorities on the delicate balance sought to
be struck by Sections and of the Act – this
was actually the fi rst such case – it would have
been impracticable and speculative to draft a
code of practice of anything more than aspira-
tional value. It is noteworthy that by the time
the Equality Authority drafted its Code of
Practice on Sexual Harassment & Harassment
at Work there was voluminous case law on the
subject making the exercise altogether more
meaningful.
It is quite clear from his judgment that
Mr Justice Hardiman is no fan of the Equality
Authority. He criticises it again and again in
quite colourful terms describing one of the
Authority’s submissions as ‘utterly reductive’
and castigating it for not ‘leaving the mem-
bers (of Portmarnock) alone to work out their
own salvation’.
For a judge, who in cases involving socio-
economic rights always insists that the
expenditure of public funds is not a matter
on which the judicial branch is appropriately
qualified to adjudicate, he is trenchant in his
criticism of the Authority for using taxpay-
ers’ money for the purpose of litigation ‘espe-
cially in times of economic difficulty’. Again,
this is quite unfair bearing in mind the total-
ity of the statutory mandate under which the
Authority operates which includes the duty
to promote equality by various means includ-
ing litigation. As a creature of statute it is
entirely appropriate that such a body should
take this part of its mandate seriously and it
hardly warrants such vehement disapproval
on the part of a judge faced with a demon-
strably justiciable issue. For someone who
felt the case should never have been taken
Mr Justice Hardiman was at his prolix best
in dispensing with it.
Mr Justice Hardiman is untouchable in
terms of expertise when it comes to rules of
evidence but he is somewhat promiscuous
in taking judicial notice of matters not quite
amounting to hard evidence. For example, in
looking at single gender associations and clubs
he mentions The Emerald Warriors which he
describes as a ‘gay mens’ [sic] Rugby Club’.
A perusal of the website of that club reveals
that Mr Justice Hardiman’s description is itself
somewhat reductive. The club is described
in the following terms: “…formed in August
to provide gay, heterosexual and bisex-
ual men the opportunity to play competitive
rugby in Ireland and internationally”. There
is obviously more to gay rugby than meets the
judicial eye.
In a genufl ection, no doubt, to the status
of The Irish Times as a paper of record, he
quotes extensively from a opinion piece
by Finola Meredith arguing for women-only
spaces. This is then used to support a judicial
surmise as to the growing number of women-
only clubs in Ireland. Clearly, to borrow from
an earlier second-hand phrase of Mr Justice
Hardiman speaking (controversially) at the
Law Society’s Justice Media Awards in ,
the farmer can quote the cowgirl, especially
to suit his own ends!
On the actual substantive point of statutory
interpretation before the Court, Mr Justice
Hardiman is very clever. Section of the Equal
Status Act sets out the circumstances in which
clubs can be classifi ed as ‘discriminating clubs’
and section describes how such clubs might
“Apart from
the fact that
Mr Justice
Hardiman’s point
was irrelevant it
was also unfair”
— December - January
be exempted from the adverse consequences
that flow from being classified in such terms.
This was described accurately by one of the
majority judges, Mr Justice Geoghegan, as
‘elaborate draftsmanship’ that was ‘tiptoeing’
around the constitutional right of freedom
of association in order to avoid a finding of
unconstitutionality.
Based on earlier and strong authorities
on this constitutional right the two (speak-
ing) judges of the majority seem to accord
it a strength that it may not deserve on a
more complete reading of the text of the
Constitution itself. While there is undoubtedly
a clear constitutional protection of the liberty
to exercise this right, subject to public order
and morality, there is also provision for limit-
ing its exercise by way of regulation and con-
trol in the public interest as long as this does
not contain ‘political, religious or class dis-
crimination’. In the same constitutional provi-
sion there is a guarantee of equality before the
law that allows the state, in its enactments, to
take account of ‘differences of capacity, physi-
cal and moral and of social function’.
Clearly, the draftsman had some tiptoe-
ing to do in seeking to achieve the purpose
of Sections and – using significant statu-
tory leverage to end discriminatory practices
by registered clubs – but that task might have
been overstated given the equality guarantee
contained in the very same constitutional pro-
vision. It is true that Irish equality jurispru-
dence to date is not rich but that is not to say
that the Constitution, on an alternative and
more progressive reading, cannot provide for
a stronger constitutional
balance between equality
and other rights.
Reading the judgments
in the Portmarnock case,
and bearing in mind that
they were not concerned
with the constitutionality
of Sections and of the
Equal Status Act, one could
be forgiven for thinking
that construing those stat-
utory provisions involved
a consideration of just
one constitutional right,
that of freedom of asso-
ciation. This also applies
to Hardiman’s considera-
tion of the analogous pro-
vision of the European
Convention on Human Rights, Article ,
where no mention is made of Article which
prohibits discrimination on an open-ended
basis in the exercise of the rights protected by
that Convention, including Article .
It might, of course, be argued that none
of this was directly relevant in a case involv-
ing no more than statutory interpretation
but Mr Justice Hardiman, in particular, goes
into considerable detail in isolating freedom
of association as a core constitutional norm
that is vulnerable, in some unusual sense, to
any attempt by the Oireachtas to limit its exer-
cise by means of anti-discrimination legisla-
tion enforced by a quango.
By contrast, Mr Justice Fennelly (dissent-
ing) upholds the original decision of District
Judge Mary Collins to categorise Portmarnock
as a ‘discriminating club’ in a plainly clever
judgment that is unconcerned with protesting
its cleverness. Rather than parsing and ana-
lysing the individual words – ‘principal’, ‘cater’,
‘only’ and ‘needs’ – in Section , he agrees with
the literal statutory interpretation applied
originally by the District Court. Applying
the ordinary and plain meaning of the words
in Sections and he finds that the princi-
pal purpose of Portmarnock Golf Club is the
playing of golf and not catering only for the
needs of men who play golf. Because the club
permitted women to play subject to certain
conditions, both minority judges (Fennelly
and Denham) were unconvinced that the club
could claim the exemption offered by Section
on the basis that its principal purpose was
to cater only for the needs of men.
Judges Hardiman and Geoghegan (sup-
ported, presumably, by Ms. Justice Macken)
reject this aspect of the minority reasoning
on the basis that there is a distinction in law
between how the club conducts its external
relations with those seeking to use its serv-
ices (i.e. non-members) and how it regulates
its internal affairs structured through mem-
bership. That is, of course, correct, but it does
not necessarily determine the central point of
the case challenging the denial of member-
ship or the right to participate in the internal
affairs of the club to one gender. It was pre-
cisely because women could only engage in
‘external relations’ with the club that the case
was taken and, on any purposive understand-
ing of the Equal Status Act, sections and
would have to be seen as an attempt, however
clumsy, by the Oireachtas to redress this overt
discrimination.
To borrow from the parlance of US Supreme
Court watchers (especially those who watched
Justice Sandra Day O’Connor), both sets of
judgments might be categorised as ‘minimalist’
as they confine themselves essentially to stat-
utory interpretation. However, Hardiman’s
is far from minimalist in its reasoning. The
judicial exercise of statutory interpretation is
not the robotic application of words to situa-
tions. As stated by Mr Justice Geoghegan at the
end of his judgment: “Even when adopting the
traditional literal interpretation, however, a
court does not do so in a vacuum. If there are
problems of interpretation it must always bear
in mind context”.
Litigation by a statutory body such as the
Equality Authority is always open to ridicule
and trivialisation. Those who seem sentimen-
tal about the passing of political incorrectness
always construe such litigation as ‘political
correctness gone mad’. It’s classic backlash
stuff and follows predictably upon equality
advances. It is disappointing that the Supreme
Court failed, by an unconvincing majority, to
give effect to the wishes of the Oireachtas to
open the membership of men-only golf clubs
to the other half of the population. That disap-
pointment is compounded by the official reac-
tion of the Equality Authority – where régime
change has evidently impacted – welcoming
the judgment for clarifying the law.
Donncha O’Connell is a Senior Visiting Fellow at the Centre
for the Study of Human Rights, LSE. He is on sabbatical
leave from the School of Law, NUI Galway, where he teaches
Constitutional Law and European Human Rights.
“The basis of Ms Justice
Macken’s agreement with two
differing majority judgments
was not explained, which is
regrettable given the pivotal
nature of her ‘swing vote’ with
the majority”
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