Men’s-Only Clubs and the Freedom of Association

A general view is seen as a businessman crosses George street at in Sydney, Australia, on June 1, 2020. (Mark Kolbe/Getty Images)

Commentary

On June 15 around 700 members of Sydney’s exclusive Australian Club voted on a motion to determine whether women were allowed to be full members. Currently, women are only welcomed as guests of existing members but are not eligible to become full members.

The Club, founded in 1838, is described on its website as “a private members” club situated in the heart of Sydney with “unparalleled views of the Botanic Gardens and North Shore.”

The website claims that “tradition and modernity have been skillfully blended to preserve what is best in a club for today’s Members, where Members bring their guests to enjoy the best amenities the Club has to offer.”

The Australian Club has reciprocal arrangements with several other private members’ clubs nationally and internationally.

The proposal to admit women was defeated, with 62 percent of members voting against the motion, against 37 percent who voted in favour.

In a commentary, published on June 16, Gemma Bath, a senior news writer, listed four “absurd” reasons that were offered by speakers at the meeting who were against the admission of women: “If we were having a dinner we would have to behave differently,” “We would have to change the taps,” “Allowing women to join would harm the club because of the publicity of the club’s affairs in gossip columns,” and “We’d have to change the decor.”

Indeed, these reasons were undoubtedly absurd because they were petty points rather than thoughtful arguments, and they became even more absurd when put forward by seriously powerful and, presumably, well-educated people.

Of course, changing the admission rules might generate some practical problems, especially with regards to the Club’s reciprocal arrangements, but it should be possible to resolve these problems in an expeditious manner.

When the results of the vote were announced, proponents of the admission of women criticised the Australian Club for maintaining gender discrimination (and race discrimination because there are few Asian, male members on its membership list).

They argued that the Club’s restrictive admission rules embed the practice of sex discrimination in society, and perpetuated prejudice.

Regardless of the validity of this argument, the proposal to amend the Club’s contentious admission rules certainly deserved a serious consideration of relevant legal and philosophical issues.

From a legal point of view, private male-only clubs, like private female-only clubs, are exempt from the application of the New South Wales Anti-Discrimination Act 1977 under Section 34A (3) which stipulates that “discrimination by a registered club against a person on the ground of his sex” is legal if membership of the registered club is “available to persons of the opposite sex only.”

Hence, from a strictly legal point of view, the Australian Club is entitled to restrict admission to male applicants only.

The Club’s male-only admissions policy is also supported by the right to freedom of association. Article 22 (1) of the United Nations’ International Covenant on Civil and Political Rights relevantly states that “Everyone shall have the right to freedom of association with others.”

In this context, Associate Justice John Marshall Harlan of the U.S. Supreme Court reminded us in the case NAACP v Alabama ex rel. Patterson that, “It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech … It is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters.”

In Peterson v City of Greenville, Harlan remarked that, “Freedom of the individual to choose his associates … to be irrational, arbitrary, capricious, even unjust in his personal relations are things all entitled to a large measure of protection from governmental interference.”

It is not hard to expect that the relaxation of admission rules would accelerate requests to remove current exemptions in the anti-discrimination law.

It is also not preposterous to suggest that the battle for admission of women to the Australian Club is merely the thin edge of the wedge, which might accelerate requests to eliminate the exclusion of women (and males) from all societal endeavours.

For example, should the Catholic Church be allowed to exclude women from the Ministry? Could one imagine the adoption of a law compelling the Catholic Church to abandon celibacy? If so, this would generate a conflict between freedom of religion and the right to be free from discrimination.

It is not fanciful to ponder these issues, considering that, in some states, priests are no longer protected by the seal of confession. What about boys or girls-only schools? What about women-only choirs?

One Member spoke to The Sydney Morning Herald anonymously just before Tuesday morning’s historic vote saying, “I don’t think I will have any choice but to cancel my membership, that is not something I want to do. But really, how could one continue to be involved in an organisation that refuses to reflect the standards of society around it?”

However, it is legitimate to ask why a club should necessarily have to reflect the values and expectations of the society around it? The whole reason for the existence of a club is to create an oasis where members do not have to comply with the standards of the society around them!

If a change in the admission rules were to be imposed on the Australian Club, its members would effectively be compelled to conform to the demands of the wider society.

Ultimately, the Australian Club’s controversy boils down to the freedom of people to make choices that are different to those that would be made by other people. Is it not the very essence of a free society to have the right to be unpopular and different?

Gabriël A. Moens is an Emeritus Professor of Law, The University of Queensland. He served as Dean of Law and Pro Vice Chancellor at Murdoch University. He has taught extensively across the world, mainly in Australia, the United States, Asia, and Europe. He is a columnist and writes short stories. He has published a novel about the origins of the COVID-19 virus, A Twisted Choice (Boolarong Press, 2020).

Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.