The creation of a level playing field between men and women has always been a thorny issue – no more so than in the context of sport. Pertinent issues continue to simmer beneath the surface in relation to the battle of the sexes. Equal pay for equal play? The Norwegians think yes. Gender quotas for sporting boards? Minister for State Patrick O’Donovan believes so. To discriminate or not to discriminate in sport? The law is quite unsure. In fact, an inherent conflict exists between the theoretical and actual regulation of gender discrimination in sport in this jurisdiction.
Irish equality law is the dominant force which regulates this form of discrimination, cautiously extending its application into the inherently segregated world of sport. At the heart of this legal framework is the principle that certain relationships should be conducted without the discrimination between the sexes. In theory, Irish equality law, be it the Employment Equality Acts 1998-2015 or the Equal Status Acts 2000-2015, aims to prohibit such discrimination in the cultural sphere of sport, which is largely dominated by patriarchal priorities. Yet, in reality the law worryingly appears to play a rather limited role in challenging discriminatory practice in sporting contexts by permitting several exemptions.
In particular, the 2000 Act contains certain provisions which explicitly disregard the general anti-discriminatory provisions in favour of maintaining the exclusion of women in certain sporting situations. Most notably, s.7(4)(a) allows educational establishments to treat students differently on the basis of gender “to the extent that the differences are reasonably necessary having regard to the nature of the facilities or events” whilst s.5(2)(f) permits gender discrimination in relation to sporting events, subject to the same reasonable conditions. These sections are clouded by considerable ambiguity not merely due to the repeated utterance of the classically vague “reasonable” test but also due to the undefined “nature of the facilities or events.” It is unclear as to what would satisfy this reasonable test but what is unfortunately clear is the permissibility of gender discrimination in certain sporting contexts.
According to s.8(1)(a)(i), a club will be deemed to be discriminatory where it has a rule, policy or practice which discriminates against a member or applicant in relation to the affairs of the club. On the face of it, it appears to constitute a plausible rule against discrimination, yet, its anti-discriminatory effectiveness is undermined by s.9. This section exempts clubs from discriminatory practice where the principal purpose of the club is to cater only for the needs of persons of a particular group from within the nine grounds, including gender. This provision contains a rather broad threshold in relation to proof of causation – too broad in fact as it apparently requires very little evidence in connecting the discriminatory act and the principal purpose of the club. The inclusion of such a low threshold fails to challenge gender discrimination in sport; instead, it seemingly tolerates the continuous existence of such discrimination in sporting clubs which appears a rather archaic approach given the progressive and inclusive society in which we currently live. But what is arguably the most troubling exemption of them all is expressed in s.9(1)(b)(i) which simply requires evidence that it is not practicable to extend the benefits or confinements to all genders which is a frighteningly low threshold. These exemptions were examined in the relatively recent case of Portmarnock Golf Club where the Irish Supreme Court held that, while refusing to admit women as members, Portmarnock was not a discriminating club as it constituted an exception within the provisions of s.9. The Court recognised that there was little doubt that these bodies were legally entitled to function on a single-sex basis. Of course, single-sex sports will always exist. Yet, the acceptance by the Supreme Court of the defendant’s argument that the refusal to award membership to women was due to “diversity” is rather questionable and, perhaps, somewhat contradictory considering that the core objective of diversity is the promotion of differences not discrimination based on differences.
However, this contradictory approach mirrors the conflict rooted in the current legislative framework regulating gender discrimination in sport. Legislative reforms are undoubtedly required to address such conflict. But, for now, whilst women sports are experiencing an insurgence, the creation of a gender equal playing field, in the legal sense at least, remains somewhat of a distant goal.