Gender Discrimination in Golf - Heads Up

By: Nancy Berkley


Next week the U.S. Open will be news. Will Tiger find his swing? As we watch the drama play unfold at Merion Golf Club outside of Philadelphia, notice one thing: There are no women playing in this premier United States Golf Association (USGA) championship.

But, that's okay. In many ways, 2013 has been a good year for women's golf. Augusta National now has women members. The LPGA Tour is enjoying a successful season, adding more sponsors and bigger purses. Both the LPGA-USGA Girls Golf program and the First Tee are attracting more female golfers.

The PGA of America and the World Golf Foundation have new and special programs to attract more women to golf. The PGA of America is sponsoring a "Celebration of Women in Golf" this week at St. Andrews Golf Club in Hastings-on-Hudson, N.Y. In fact, the core thesis for the PGA's new program, "Connecting with Her," is that women and men approach golf differently. In general, the program materials report that women want a more social experience, men enjoy more competition and men and women benefit from different teaching methods. Vive la difference!

Although you won't see women playing in this week's U.S. Open, technically the championship is open to both men and women with additional provisions for transgender golfers. In spite of this, however, the entry form assumes male golfers by its very language: "By his application, the player acknowledges that he is not entitled to remuneration of any kind for participation in the Championship."

The reason this technically "gender-neutral" major championship has male golfers only is that the U.S. Open application requires a USGA Handicap Index® of 1.4 or lower. (That's like shooting par on every hole from the longest tees.) More importantly, the Handicap Index of the applicant must be based on course ratings for male golfers!

Accordingly, if a top female golfer wants to qualify to play in the Open, she must post her scores for handicap purposes as if she was a male player. She must use the course ratings for male golfers from tees rated for male golfers, which are usually about 1,000 yards longer than tournament tees for professional women golfers.

Although there are many female recreational golfers that play better than recreational male golfers, at the very top of today's professional golf pyramid most female pros probably would not qualify for this week's men's U.S. Open. That's the reason you won't see women on the fairways at Merion next weekend and why the tournament is really just for men.

In the way of background: In 2003, Annika Sorenstam became the first modern-era female to play in a men's PGA Tour event. She received a sponsors' invitation to play in the Colonial Tournament in Fort Worth. She was at the top of her game. It was a highly publicized and historic event. But the Swede did not make the cut for the final rounds. Playing from the men's tees, she just did not have the length to play better than her male counterparts.

Sorenstam's golf attire from the Colonial now sits on display at the World Golf Hall of Fame Museum in St. Augustine, Fla., but she never again sought out head-to-head competition against men in a professional tournament. Instead, she is a driving force in promoting the success of the LPGA while pursuing golf course architecture and her golf instruction academy.

Ten years after Colonial, in a January 2013 very well-attended interview at the PGA of America Merchandise Show in Orlando, Sorenstam was asked if she would like to see women compete at Augusta National. Rather than looking back at her own experience, she took this question and her answer to a different place.

She did not respond by saying she hoped that someday women could compete against men at August National. Instead, Sorenstam said that it would be wonderful to someday have the LPGA Tour play at Augusta National. Her response supports the merits of gender-based golf.

So after you watch the men compete at the U.S. Open, mark your calendar for the upcoming U.S. Women's Open at Seabonack Golf Club in Southampton, N.Y., June 27-30. That's also a major USGA Championship, but it is for women only. There are no provisions for men to apply or qualify.

This year's U.S. Women's Open marks the 67th anniversary of the first U.S. Women's Open, which was played in 1948 at the Spokane Country Club in Washington State. It was won by Patty Berg, was also one of the 13 women who founded the Ladies Professional Golf Association - the LPGA - two years later in 1950.

But there are some gray clouds circling above. Gender-specific golf programs at public courses - such as clinics for women golfers, special promotions for "ladies day" or "men's days" and dedicated tee times based on gender - are under scrutiny.

And historic Spokane Country Club is back in the news.

In March of this year as reported in "The Spokane Review" and "Seattle Times," after five years of litigation, a jury in a state trial court in Spokane returned a verdict that found Spokane Country Club had discriminated against four female members. The jury determined that, among other issues, the club's gender-based practices - including gender-based tee times - violated the state's anti-discrimination law.

Also as reported in the newspapers, the defendant Spokane Country Club has appealed the issue of whether it is a public or private facility under Washington law. If the club is a private entity, it would not be subject to the state's anti-discrimination statutes.

And as further reported, pending appeal, Spokane Country Club filed for bankruptcy under Chapter 9 of the Bankruptcy Code as it faces plaintiff's legal fees and claims for damages. This is certainly not what Patty Berg could ever have envisioned back in 1948 when she claimed the first U.S. Women's Open Title in Spokane.

If the Spokane jury verdict were to be followed in other situations, it's possible that every public tennis or bowling facility that offers gender-based league play would have to rethink their programming. The Spokane trial was about golf. But its reach could be much broader. The girls' softball summer league at your local recreation department may become co-ed. What the four women members of Spokane Country Club began as a gender-discrimination issue may have unintended consequences.

Some women reading this may applaud the jury's decision in Spokane. The idea that any golf tee at any time is equally open to women and men sounds worthy of a Gloria Steinem 1970s' Ms. Magazine. But the issue is really not that simple.

How women and men are equal and how we differ has been the topic of many studies and articles. And most women have an experience to share on that subject. Here's mine:

In 1987 at the age of 47, I was a second-year law clerk in one of the top New York Wall Street Law firms, Sullivan & Cromwell. (I was a late bloomer in law having begun law school at 42.) The firm was having its annual golf outing at a posh club on Long Island. I was a golfer having played the game recreationally for about 20 years.

I noticed that the outing had a longest-drive contest. And I knew that since there weren't many women lawyers at the firm there certainly were not going to be many women golfers. I envisioned that in the longest drive contest, I was going to have to compete against all the men. It didn't look like a fair contest to me.

I approached the partner in charge of the outing and said there had to be a women's and men's division for the longest drive. He paused and told me that I was the only woman playing in the tournament. I replied, "Well, then I guess I will win the women's longest drive." And I did. Like it was yesterday, I remember claiming a lovely blue ladies sweater as my prize.

I was not embarrassed to be the only women golfer in my gender-based competition; I was proud to have achieved a comparable competition for both genders. What I wanted was fairness - a level playing field - and a fair opportunity.

After retiring from practicing law and a follow-up career in marketing, I became a consultant and advocate for women's golf. One of my first assignments was for the Golf for Women magazine (which is no longer published). In 2000, I was assigned to write about a landmark gender discrimination case involving nine women golfers who were suing their golf club under the state of Massachusetts anti-discrimination laws. The famous case is Bourne vs. Haverhill Golf and Country Club, Inc.

I traveled up to Boston to interview the plaintiffs. The women wanted to play golf on weekend mornings but, in order to do that, they had to be admitted as a full member. As facts emerged during the trial the "waiting list" for full members was manipulated by the club in such a way that men behind them on the waiting list became members before women ahead of them.

On appeal, the women plaintiffs won an award of nearly $2 million based on the determination that the women had been discriminated against. What is especially noteworthy in reading my notes from my conversation with the lead plaintiff, Judith Bourne, was that she was not initially focused on equality and illegal discrimination at Haverhill; she was focused on fairness.

Even more noteworthy is that Bourne was an avid supporter of Title IX during her earlier career as a college basketball coach. Title IX requires that any school or athletic facility that accepts federal funds must offer "comparable" athletic programs for both genders. How ironic: The lead plaintiff in one of the most important gender discrimination cases in the history of U.S. women's golf, valued and promoted "comparability" in sports.

Since Haverhill, there have been several important women's golf-gender discrimination cases. Most are centered on membership issues such as the rights of a spouse when the member, who holds title to the membership, divorces or resigns from the club. A Connecticut case involved whether the choice of female tees in a mixed-gender tournament put women at a disadvantage that rose to the level of gender discrimination.

An important case arose last year in Dennis, Mass., where a public course was required to allow the daughter of one of its members to play with her father in a men's member-guest tournament. In California, a series of cases ended up prohibiting golf facilities, from offering discounts to women during a special promotional women's golf month.

Belly-putters are not the real issue for most golfers. The real issue is: How do I play with people I want to play with, when I want to play, in formats that make me love the game of golf - without violating a state or federal constitution? How do we promote fairness and justice in our game that ensures equal opportunities for both women and men to advance their skills and ensure equal enjoyment?

My solution is to provide "comparable" gender-based golf opportunities. Every study I've read that analyzes what encourages women and men to learn the game and play more golf supports the effectiveness of some gender-based programs in the overall mix of a season's golf schedule. As an expert witness for Spokane Country Club in the recent jury trial, my publicly-filed Declaration confirmed my view that comparability is the appropriate test for whether or not a golf facility is engaged in gender discrimination.

The focus should be on providing equal opportunities for both females and males to learn skills - like golf - in environments that promote education and improvement. This is an equal-opportunity argument that compliments the enactment and success of Title IX.

It's something to think about this summer as we watch the men's U.S. Open, U.S. Women's Open, LPGA Tour and Solheim Cup (the women's golf counterpart to the men's Ryder Cup matches).

Remember to keep your head down when you swing. But keep "heads-up" on the gender issues that are currently surfacing. And may the best man and best woman win.

Nancy Berkley, President of Berkley Golf Consulting, is an expert on women's golf and junior-girls golf. She is a frequent contributor to www.cybergolf.com/womensgolf. Her book, "Women Welcome Here! A Guide to Growing Women's Golf," published by the National Golf Foundation, is an industry reference on marketing golf to women and spotting trends within the industry. She offers information and advice about the golf industry on www.berkleygolfconsulting.com and is often quoted in national publications. She was a contributing editor of "Golf for Women" magazine and a founding advisor of "Golfer Girl Magazine." Her interviews with women in the golf industry now appear on www.golfergirlcareers.com. Nancy lives in Palm Beach Gardens, Fla., and is a graduate of the University of Minnesota, Harvard University and Rutgers Law School. After a business and legal career, she decided to write about the game she learned and loved as a teenager. She describes herself as a good bogey golfer with permanent potential.