April 25, 2017

April 25, 2017

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April 24, 2017

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Girls Allowed in the UK – A Historic Day for Muirfield Despite the Equality Act 2010

With 80.2% of votes in favour (498 of 621 votes cast) Muirfield has today announced that it will, for the first time, admit women as members of the historic golf club.

Founded in 1744, the famous East Lothian links course, considered one of the best in the World, and home to the Honourable Company of Edinburgh Golfers, claims to be the oldest golf club in the World.  However until today, whilst women could play as guests or visitors, they were not allowed to be members of the club.

In May 2016 a controversial vote resulted in the two-thirds majority required for a change in the membership rules not being met, with only 64% of those voting in favour of the proposed change. Those who campaigned against allowing women members pointed to concerns about slow-play and, perhaps surprisingly, that women may feel uncomfortable in the Clubhouse, suggesting a “lady friendly” second course and clubhouse as alternatives.

This vote led the R&A, the body which governs the sport of golf worldwide with the USGA, to announce that it would no longer allow the Open Championship, the oldest of the 4 Major Championships, to be held at the course which had been the host on 16 previous occasions, the second highest in the modern era behind only St. Andrews. As such it looked like Phil Mickelson’s triumph in 2013 would be the last time the Open Championship was held at Muirfield.

Following the outcome of the May 2016 vote, the membership policy was described as “simply indefensible” by Scotland’s First Minister, Nicola Sturgeon, a view shared by many. So how legally was Muirfield able to justify it membership policy?

In 2005 the then Labour Government made a commitment to codify a number of different pieces of legislation then on the statute booked which were aimed at dealing with gender equality and discrimination both at work and in society generally.

The result was the Equality Act 2010 (the “Act”) which was described by some as “Labour’s biggest idea for 11 years”, albeit it was actually enacted under the coalition government of David Cameron and Nick Clegg. The aim of the Act was to protect people from discrimination in the workplace and in wider society including on the grounds of sex.

s.101 of the Act prohibits discrimination against any association, including a golf club, when deciding who to admit to its membership. Nor must a club discriminate against its members such that they would have lesser rights than any other. So far, so good, in that this would suggest that not only could clubs not discriminate between its male and female members, they could not enforce different playing policies, such as women only being able to play before a certain time or on certain days.

On the face of it therefore Muirfield’s previous membership policy appeared to fall foul of the legislation. However, within Schedule 16 of the Act there exists an exemption for “Single characteristic associations”. As a result, whilst clubs with both male and female members could discriminate between members it remained open for Muirfield not to allow female members at all.

In the circumstances it would appear likely that it was the commercial and reputational effects of losing the Open that led Muirfield to reform rather than any legal requirement to do so.

In case it is thought that Muirfield was alone in such issues it should be remembered that the Royal and Ancient Golf Club of St. Andrews admitted its first female members following a vote in 2014, Royal Troon in 2016 and the Augusta National Golf Club, home of the US Masters, admitted its first female member, Condoleezza Rice in 2012.

Such was the issue of discrimination within golf that it nearly prevented its chances of being introduced to the 2016 Rio Olympics with the IOC debating whether it compiled with the Olympic criteria of being a “sport practiced without discrimination with a spirit of friendship, solidarity and fair play”.

In light of the above perhaps it is time to get rid of the Schedule 16 exemptions as far as they relate to sports clubs?

The issue of equality in sport is one which has been covered variously on this blog and today’s vote appears to be another step in the right direction.

UPDATE: As a result of today’s vote the R&A has confirmed that its previous decision regarding Muirfield holding the Open has now been reversed.

© Copyright 2017 Squire Patton Boggs (US) LLP

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About this Author

Tim Lowles, Squire Patton Boggs Law Firm, Sport Litigation Attorney
Senior Associate

Tim Lowles is a Senior Associate in our Litigation Practice Group. Tim advises upon all aspects of commercial litigation with a particular emphasis on sport, contentious media and reputation management issues for companies, institutions and high profile individuals. He has been involved in a number of reported cases and was a member of the team which represented the Core Participant Victims in the Leveson Inquiry.

Tim has advised a number of household names from the sporting world on various issues ranging from contractual disputes to...

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