The Tasmanian Supreme Court has overturned an order that a Hobart museum allow men to enter its women-only installation.
In April, the Tasmanian Civil and Administrative Tribunal (TASCAT) ordered the Museum of Old and New Art (Mona) to stop refusing entry to its Ladies Lounge exhibition to people who did not identify as ladies.
New South Wales man Jason Lau had filed a complaint against the gallery with Equal Opportunities Tasmania after he was refused entry in April 2023. The complaint was referred to TASCAT by the Anti-Discrimination Commissioner.
On Friday, Acting Justice Marshall determined TASCAT had made an error of law and sent the decision back to the tribunal for reconsideration.
In its decision, TASCAT said had been asked to decide whether the artwork fell within the Section 26 gender exception of the Anti-Discrimination Act 1988 (Tas), in that the artwork was “designed to promote equal opportunity for a group of people who are disadvantaged or have a specific need because of their gender”.
Mr Lau contended he experienced direct discrimination on the basis of gender, and TASCAT Deputy President Grueber agreed, stating the ”very raison d’etre” of the lounge, which opened in 2020, was discrimination on the basis of gender.
“The Ladies Lounge has a pointedly participatory component that is intentionally discriminatory, for a good faith artistic purpose that many might not only appreciate but sympathise with or endorse,” Deputy President Grueber said.
“If the Ladies Lounge were a women-only club it might well be able to lawfully function for its members as it functions now for women patrons of Mona.
“If the Ladies lounge offended, humiliated, intimidated, insulted or ridiculed Mr Lau, or incited hatred, serious contempt or severe ridicule of Mr Lau, rather than discriminating against him, (gallery operator) Moorilla might well have a good defence based on good faith artistic purpose.
“However, the Act does not permit discrimination for good faith artistic purpose per se.”
However, Acting Justice Marshall said TASCAT had asked the wrong question when considering whether s 26 was satisfied, and thereby, had made an error of law.
“The correct approach to s 26 is to ask first whether the arrangement’s purpose was to promote equal opportunity,” he said.
“On the evidence, the unequivocal answer is yes because the Ladies Lounge was designed to provide women with an exclusive space where they receive positive advantage as distinct from the general societal disadvantage they experience…”
Mona’s evidence had included the 2024 International Women’s Day annual Report Card which showed that compared to men, women continued to experience more sexual violence and earned less despite working more.
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