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While political and social pressures from both inside the golf world as well as the general public have prompted clubs like Muirfield and Augusta National GC to admit women and end other discriminatory policies, private clubs are still protected legally from federal regulation. But opening their facilities to public use can jeopardize their immunity from legal scrutiny, as can state and municipal tax and licensing laws.
The recent announcement by Scotland’s Muirfield golf club that it would admit women members for the first time since its founding in 1744 prompted Sports Illustrated to publish an article, “Why Private Clubs Are Legally Still Able to Discriminate Against Women” written by Michael McCann, the magazine’s Legal Analyst who is also an attorney and Director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law.
“It might strike you as surprising that, in 2019, there are still golf clubs in America that only allow men to become members,” McCann wrote. “Several exclusive clubs, including Burning Tree Club in Bethesda, Md. and Butler National Golf Club in Oak Brook, Ill., continue to deny memberships to women on the basis of their sex.
“They do so legally, too,” McCann added.
Even though Muirfield’s decision to admit women, and a similar one made by Augusta (Ga.) National Golf Club in 2012, reflected the success of political and social pressure—both from within the golf world as well as the general public—to end age-old discriminatory membership policies at private clubs, McCann wrote, other clubs haven’t changed. Burning Tree, for example, reportedly has no women’s locker rooms or bathrooms, he wrote, and New York’s Garden City Golf Club (not to be confused with the Garden City Country Club) features a male-only membership and is so private that it doesn’t even have a website (https://clubandresortbusiness.com/garden-city-n-y-gc-stands-firm-male-tradition/).
The exclusivity of private clubs’ membership is crucial to understanding their capacity to exclude women in the face of civil rights laws, and why “undisguised and unvarnished” discrimination against women is still lawful as the third decade of the 21st century approaches, McCann wrote.
As a starting point, he stressed, the fact that clubs are private businesses does not, on its own, authorize them to discriminate. The federal Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, religion and national origin. In the context of employment, Title VII of the Act also prohibits discrimination on the basis of sex.
Further, the Act does not exclusively regulate public entities, McCann noted. It also governs private businesses and, when those businesses are places of “public accommodation,” how those private businesses serve customers. A business is considered a place of public accommodation when it is generally open to the public. Examples include sports arenas, movie theaters, restaurants, day-care facilities, gyms, gas stations and banks. Other federal laws, including Title IX in 1972, prohibit discrimination on the basis of sex in education and related fields.
These federal laws do not, however, regulate private membership clubs with respect to their membership policies, McCann wrote. A private membership club, as it is sometimes called, is one that is explicitly not open to the public. This type of club also determines—and is expected to provide clear notice of—specific criteria for membership, and such criteria must be ostensibly relevant to the club’s purpose.
Private membership clubs come in all shapes and sizes, including social clubs, fraternal clubs, country clubs and golf clubs, McCann wrote. Many private clubs require that a prospective member be recommended by an existing member, exhibit certain professional qualities, partake in relevant club experiences and receive a favorable vote from the club’s membership committee. For many private clubs, prospective members must also be prepared to pay a fee to gain membership.
The legality of membership discrimination by private clubs is found in several places, McCann wrote.
First, the Civil Rights Act of 1964 contains an exemption for private clubs in their membership activities. Specifically, the Act “shall not apply to a private club or other establishment not in fact open to the public, except to the extent that the facilities of such establishment are made available to the customers or patrons of an establishment.” This language means that private clubs can’t discriminate against customers, McCann explained, but can discriminate against prospective members.
The First Amendment to the U.S. Constitution also protects private clubs, McCann wrote. While often cited in the context of free speech, particularly with respect to an individual person’s right to say what he or she would like and not fear government persecution, the First Amendment has also been interpreted by the courts to safeguard the right of private clubs to engage in “expressive association.”
In the context of private associations, “expressive association” (also called “expressive activity”) refers to entities that organize for the purpose of attracting members who share certain viewpoints, interests, values or abilities and who make clear that they are not open to the public, McCann wrote. Correspondingly, expressive association protects the right of members to associate and to set applicable terms for membership. Such terms can include procedures and practices that deny others the right to join because they lack certain qualities for membership.
The U.S. Supreme Court has repeatedly upheld private associations’ right to expressive association, McCann wrote, even in cases when relevant fact-patterns feature explicit discrimination.
Most prominently, he said, in 2000 the U.S. Supreme Court upheld the Boy Scouts of America’s ability to exclude gay men from the rank of Assistant Scoutmaster. In his Boy Scouts of America v. Dale opinion on behalf of himself and four other justices, U.S. Supreme Court Chief Justice William Rehnquist reasoned that because the Boy Scouts had determined homosexual scoutmasters would interfere with the organization’s expressive association, the Boy Scouts were not required to follow a New Jersey public accommodations law that had prevented such discrimination.
While their membership policies are permissible under federal law, McCann wrote, private clubs that discriminate must still be mindful of how their business operations can jeopardize their immunity from legal scrutiny. This is particularly true of clubs that open up some of their facilities to the public.
For example, he noted, some clubs lease rooms for wedding receptions and other functions. The more that clubs morph into “places of public accommodation” in order to attract additional sources of revenue from non-members, he wrote, the more vulnerable they become to losing their private membership status and the legal protections it carries.
Also, private golf clubs that discriminate can face adverse consequences under anti-discrimination, tax and licensing laws found in state statutes and municipal codes, McCann wrote. For example, a number of states condition eligibility for tax deductions and eligibility for liquor licenses on (among other factors) the absence of discriminatory membership policies.
In addition, race- and sex-based membership exclusions have caused organizers of major tournaments to bypass discriminating clubs as prospective hosts, McCann noted. Those consequences are more business outcomes than legal after-effects, but are nonetheless impactful in terms of a club’s revenue and prestige.
Aside from legal and business reasons, McCann wrote, basic fairness can motivate clubs’ executives to change membership policies, as they likely recognize that denying membership to any groups puts more at stake than just enhanced access to a club’s golf course or other amenities.
This was a point explained eloquently by a Northern Kentucky University law professor, Jennifer Jolly-Ryan, in a 2006 law review article, “Teed Off about Private Club Discrimination on the Taxpayers’ Dime,” McCann wrote. In that article, Jolly-Ryan detailed how denying private-club memberships to women or other groups can also mean a loss of professional opportunities to network, lobby and pursue business ventures that are known to arise in conversations between club members.
At some clubs, McCann wrote, members include elected officials, powerful business executives and influencers for whom opportunities for one-on-one interaction might otherwise be impossible and that might lead to career advancement. There is a common-sense argument, therefore, that clubs should not deny these important and foreseeable benefits on the basis of someone’s sex or other factors.