MCC’s female membership consultation — what sports organisations need to know

The Marylebone Cricket Club (MCC) has found itself at the centre of a fascinating debate about diversity, tradition and equality law.

Founded in 1787 and regarded by many as the custodian of cricket’s laws, the MCC opened its membership to women in 1998 — more than 200 years after its formation. While that decision marked a significant step forward, the club has acknowledged that female representation remains low, with women reportedly accounting for around 3.2% of full members.

Against that backdrop, the MCC is consulting on a range of proposals aimed at increasing female membership. However, some of those proposals have prompted questions about where lawful positive action ends and unlawful discrimination begins.

While the outcome of the consultation remains to be seen, the debate raises important issues for sports clubs, membership organisations and national governing bodies (NGBs) seeking to improve diversity within their own structures.

Here, Isobel Netherwood from our award-winning sports law team explores what the MCC’s consultation may mean in practice, where the legal risks may arise and the key considerations for organisations looking to increase representation while managing potential legal challenges.

Why is MCC considering change?

The MCC’s proposals don’t exist in a vacuum. Over recent years, sport has faced increasing scrutiny regarding diversity, inclusion and representation. Cricket in particular has undergone significant reflection following the Independent Commission for Equity in Cricket (ICEC) report, while the growing popularity and visibility of the women’s game has further highlighted the importance of ensuring that institutions reflect the sport that they serve.

For many sports organisations, diversity is no longer viewed solely as an equality or governance issue. It can also influence commercial partnerships, stakeholder expectations, supporter engagement and an organisation’s long-term relevance.

The MCC has also publicly committed to making cricket a more inclusive and accessible sport. However, membership structures can be slow to evolve. Reports suggest that obtaining full MCC membership can take several decades, meaning that changes in representation occur gradually even where eligibility criteria are equal.

For organisations committed to improving diversity, that can create frustration. The challenge then becomes how to accelerate change without creating new legal risks.

What is MCC proposing?

The proposals reported in the media include:

• fast-tracking women through the membership waiting list
• allocating some new memberships on a 50:50 gender basis
• allowing members to make additional nominations where women are included among their proposed candidates.

The measures are intended to address the historic under-representation of women within the club and increase female membership at a faster rate. However, some of the proposals would involve treating applicants differently because of their sex. That’s where equality law becomes relevant.

What does ‘positive action’ mean under the Equality Act 2010?

The Equality Act 2010 recognises that people who share a protected characteristic may experience disadvantage, have different needs or participate in an activity at disproportionately low levels. Where an organisation reasonably believes that to be the case, section 158 of the Equality Act permits proportionate measures designed to address those issues. Importantly, organisations can’t simply assume that positive action is justified. Instead, they should be able to point to evidence demonstrating that disadvantage, particular needs or under-representation exist before introducing measures designed to address them.

Importantly, positive action is lawful in certain circumstances. For example, a sports club may develop targeted outreach programmes aimed at encouraging women and girls to participate in sport. It may create female development pathways, mentoring initiatives or engagement campaigns designed to address barriers to participation. Such measures are often relatively straightforward examples of positive action because they focus on encouraging participation and addressing disadvantage.

What the law doesn’t provide is an unrestricted ability to favour one group over another simply because it’s under-represented. The legal position is usually more difficult where an organisation moves beyond encouraging participation and starts making decisions about who receives a particular benefit or opportunity.

Where do the legal risks arise?

The key concept underpinning lawful positive action is proportionality. In broad terms, organisations must be able to demonstrate that a measure is a proportionate means of achieving a legitimate aim. That requires evidence, careful consideration and a clear rationale for the steps being taken.

It’s therefore unsurprising that some commentators have questioned whether proposals such as fast-tracking female candidates or reserving memberships based on gender could give rise to legal challenge. A male applicant who’s spent many years on a waiting list may argue that he’s been treated less favourably because of his sex. Equally, fixed gender allocations may attract scrutiny where membership decisions are directly influenced by a protected characteristic.

That doesn’t automatically mean that such measures are unlawful. The legality of any proposal will depend on its precise design, the evidence supporting it and whether the measures can properly be justified as proportionate in the circumstances. However, the closer a proposal moves from encouraging participation towards determining membership outcomes, the greater the potential legal risk becomes.

Lessons for clubs & NGBs

For sports organisations, the MCC consultation provides a timely reminder that diversity initiatives should be both ambitious and carefully designed. Before introducing measures intended to address under-representation, clubs should ensure that they understand the nature and extent of the issue. Evidence gathering, stakeholder consultation and clear decision-making processes are all essential. Organisations should also ask whether the proposed measure is genuinely likely to achieve its objective.

Governance and reputation shouldn’t be overlooked. Membership reform can generate strong views from stakeholders, particularly where historic structures and traditions are involved. Transparent communication about the rationale and objectives of any proposed changes is therefore critical.

It’s also worth remembering that membership arrangements can raise different legal issues from those that arise in the workplace. Membership decisions are usually governed by a club’s constitution, rules and wider governance framework, rather than an employer/employee relationship. Because those rules, governance requirements and equality law can overlap, organisations should take advice before making changes that affect access to membership or other opportunities.

A debate extending beyond Lord’s

The MCC’s consultation reflects a challenge facing many organisations across sport and beyond. While there’s increasing pressure to improve representation and ensure that institutions better reflect the communities that they serve, there’s also a need to operate within the framework established by equality legislation.

The Equality Act 2010 provides important tools that can help to address under-representation but it also places limits on preferential treatment. Striking the right balance is rarely straightforward.

Whatever the outcome of the consultation, the debate is likely to be watched closely well beyond the Long Room. It’s a useful reminder that the most effective diversity initiatives aren’t only well-intentioned but also evidence-based, proportionate and legally robust.

Talk to us

Our sports sector team works with NGBs, clubs, leagues and membership organisations across a wide range of governance and regulatory matters. We regularly advise on constitutional and rulebook reviews, membership frameworks, disciplinary and regulatory processes and the legal implications of proposed policy changes.

Working alongside our employment law team, we help you to assess whether proposed diversity initiatives are likely to fall within the scope of lawful positive action, understand the limits imposed by the Equality Act 2010 and identify practical ways to increase participation and representation while minimising legal risk.

We also support organisations with wider governance, culture and EDI projects, including reviewing policies and procedures, advising on consultation processes, assessing equality law risks and helping you to develop evidence-based strategies that are proportionate and aligned with organisational objectives.

Talk to us by calling 0333 004 4488, emailing hello@brabners.com or completing our contact form.