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Miscellaneous

Q: Sexual discrimination/exclusion of female members

Why is it legally permissible for working men's clubs and the likes of The Garrick to either refuse women membership or give them restricted rights?

A: Because by Section 29 of the Sex Discrimination Act 1975, sex discrimination against a person seeking to obtain or use goods, facilities or services - which expressly includes facilities for entertainment, recreation or refreshment - is rendered unlawful only if the goods, facilities or services concerned are made available to the public or a section of the public. By its very nature a private members' club does not offer goods, facilities or services to the public or any section of the public but only to club members who are privately elected to membership by management of the club or a committee of its members under the club rules.

As to the reasons why non-public organisations are excluded in this way, one can only speculate but the following are the reasons which occur to me, although there may be others.

Firstly, in considering any invasion of the privacy of an individual or a group of individuals, the desirability of prohibiting sex discrimination has to be balanced against the right of privacy and in this instance in deciding where the greater harm would be done, the right to privacy has obviously won. The right to decide whom one chooses to invite into one's own home is analogous to whom a private group of people choose to invite into their own private club. It is interesting to compare the case of racial discrimination, where the scales are weighted in the opposite direction, so that the law prohibits refusal of club membership on grounds of race, except where the club has fewer than 25 members or where its principal object is to benefit persons of a particular racial group defined otherwise than by reference to colour.

Secondly, there is the principle of reciprocity. Sex discrimination can operate against men as well as women. The legislation covers both. If men-only clubs were to be banned, so too would be women-only clubs, of which there are believed to be quite a number.

Human rights in this type of situation arguably involve balancing the right to liberty of the individual and freedom of association against the right to non-discrimination on grounds of gender. Each of the two sexes has inherent characteristics of physical appearance, mode of dress, habitual behaviour, body language, social propensities and so forth which are commonly regarded as distinguishing features of one from the other and it may well be thought too great an infringement of liberty to prohibit private individuals from consorting in a private place for entertainment, recreation or refreshment to which persons of the opposite sex are not admitted - which may be one reason why such places have a special attraction for the persons concerned. Having said that there are a number of long-established one-sex-only clubs which have recently opened their membership to the opposite sex amid great controversy among their members.

For the above and possibly other reasons, it may well be thought that, in this particular context at least, sex discrimination, unlike racial discrimination, is not regarded as inherently offensive in present-day society, although in saying this I personally am not expressing a view one way or the other.

First published September 2003