Hobart’s MONA ordered to allow men into ladies-only exhibit after TASCAT decision on anti-discrimination laws
Published on April 16, 2024 by Lucinda Gunning and Isabel Leung
The Deputy President of Tasmanian Civil and Administrative Tribunal (TASCAT), Mr Richard Grueber, delivered a ruling on 9 April 2024 finding that MONA’s refusal of a New South Wales man’s entry to its women-only Ladies Lounge exhibit constituted ‘direct discrimination’. Following this decision, Moorilla Estate Pty Ltd (Moorilla), operator of MONA, has 28 days to stop refusing entry to non-female identifying individuals to its women-only exhibit, ‘Ladies Lounge’.
The decision highlights that while ‘discrimination’ in gender-exclusive clubs is lawful within the exception of Tasmania’s Anti-Discrimination Laws, gender-exclusive art ‘designed to promote equal opportunity’ does not fall within the scope of this exception.
I. Background
In April 2023, Jason Lau from NSW visited Hobart’s Museum of Old and New Art (MONA) and was refused entry into the ‘Ladies Lounge’ exhibit. The ‘Ladies Lounge’ artwork is a private lounge enclosed by a curtain which includes the performance of restricting access to the space by men and permitting access to the space to ‘ladies’ only.
Mr Lau subsequently sued MONA on the basis of gender discrimination for his refusal of entry to MONA’s women-only exhibit.
The artist of the Ladies Lounge artwork who is also a curator at MONA, Ms Kirsha Kaechele, described the Ladies Lounge as a response to the ‘lived experience of women forbidden from entering certain spaces throughout history’, noting the example of women being refused entry to public bars in hotels prior to 1970 [17].
II. The issue of discrimination
The key issue was whether MONA could lawfully discriminate non-female identifying persons from entering the ‘Ladies Lounge’ exhibit.
After considering the evidence, Deputy President Grueber determined that the ‘true reason’ for the refusal of entry was Mr Lau’s male gender and that he was therefore treated less favourably than a ‘lady’ permitted entry to the premises, ‘the notional comparator’ in these circumstances: [30] – [31]. The Deputy President therefore found that the refusal of entry constituted ‘direct discrimination’ for the purposes of sections 14, 16 and 22 of the Anti-Discrimination Act 1998 (TAS) (‘ADA’).
The decision therefore turned on whether the ‘Ladies Lounge’ was a ‘program, plan or arrangement designed to promote equal opportunity for a group of people who are disadvantaged or have a specific need because of their gender’ allowing it to fall within an exception to discrimination provided by section 26 of the Anti-Discrimination Act 1998 (TAS).
a) Does section 26 permit the Ladies Lounge to discriminate?
In considering whether the discrimination fell within the exception of section 26 of the ADA, the Deputy President also compared it with section 55 of the ADA which expressly refers to artistic purpose.
The artist, Ms Kaechele, provided evidence that the artwork’s intention was to promote equality for women as a disadvantaged group. At paragraph [40] of the decision, MONA submitted that the Ladies Lounge is ‘an arrangement to promote equal opportunity, and that for the purposes of s 26 it is the intention or purpose of the arrangement that governs the characterisation of it as non-discriminatory’.
To determine whether the ‘Ladies Lounge’ fell within this exception, the Deputy President considered the following issues:
- Can the ‘Ladies Lounge’ be a program, plan or arrangement? [42] – [45]
- Are women a group of people who are disadvantaged or have a special need because of gender? [46] – [50]
- Is the ‘Ladies Lounge’ designed to promote equal opportunity? [51] – [55]
In his consideration of the issue above from [65]-[76], the Deputy President was not satisfied that the evidence tendered by Moorilla on behalf of MONA demonstrated that the design or intention of ‘Ladies Lounge’, in its discrimination of men, promoted equal opportunity by affecting a disadvantage.
The Deputy President noted that Ms Kaechele did not raise disparity in the display of artwork by female artists as a reason for the Ladies Lounge but instead, focused on the issue of access to spaces as the rationale for the artwork. Mr Rawlin, another MONA curator, gave evidence explaining the concept of ‘Ladies Lounge’ as “a desire to acknowledge or augment the male bias in our collection and display”. The Deputy President considered that these reasons failed to consider how the concept was intended to promote equal opportunity.
In response to MONA’s submission that the artwork made a statement regarding the disparity between the display of art by male and female artists, the Deputy President considered that, it did not of itself promote the opportunity for art by women to be displayed. Furthermore, the Deputy President concluded that MONA could not reasonably consider that by excluding men from the exhibit, the artwork was capable of promoting equal opportunity of the display of art by women.
With respect to the submission that the artwork was a statement regarding the disadvantage experienced by women in respect to access to spaces, the Deputy President acknowledged past systemic disadvantage but considered that there was no evidence raised in relation to the contemporary exclusion of woman from spaces. The evidence of contemporary exclusion was limited to a reference of men-only clubs and Ms Kaechele’s own experiences at Flinders Island, when it was suggested to her that she might prefer to sit in the ladies’ lounge of the local club.
The Deputy President found that the reference to men-only clubs and Ms Kaechele’s own experiences was insufficient evidence to establish this disadvantage.
The Deputy President also considered that even if the disadvantage was established, ‘the discrimination experienced by Mr Lau did not promote equal opportunity for access by women to spaces or any other purpose within the meaning of s 26’ [75].
III. Other issue
Additionally, the Deputy President also criticised the behaviour of a group of 20 women who engaged in ‘performance art’ at the hearing in support of MONA, stating that ‘at the very least it was inappropriate, discourteous and disrespectful and at worst contumelious and contemptuous’ [78].
IV. Conclusion
The decision highlights that artworks such as the Ladies Lounge are distinguishable from a gender-exclusive facility with respect to ‘discrimination’, which is also noted by the Deputy President at [8] ‘if the ladies lounge were a women-only club it might well be able to lawfully function’.
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