Takeaways from the Ladies Lounge discrimination case

On 9 April 2024, the Tasmanian Civil and Administrative Tribunal (Tribunal) determined that an exhibition at the Museum of Old and New Art (MONA) in Hobart was found to have breached Section 26 of the Anti-Discrimination Act 1998 (TAS) (the Act).

Facts

Moorilla Estate Pty Ltd operates MONA which contained an exhibit called the ‘Ladies Lounge’. The Ladies Lounge consisted of a personal concierge, butlers, and various artworks designed for the viewing of ladies only. The creator of the space, Ms Kirsha Kaechele created the space as ‘a response to the lived experience of women forbidden from entering certain spaces throughout history.’

The dispute arose when the Applicant, Mr Jason Lau, was denied entry into the Ladies Lounge exhibit, on the basis of his gender, sparking a legal battle on whether Mr Lau’s exclusion constituted unlawful discrimination as set out in the Act.

Decision

The Tribunal held it was clear that Mr Lau was excluded from the Ladies Lounge on the basis of his gender and his exclusion constituted direct discrimination in the provision of facilities, goods and services. The exclusion of men was indeed the whole purpose of the Ladies Lounge.

However, the Act sets out the exemptions in respect of conduct which is otherwise in breach of the Act. Relevantly, section 26 of the Act allows discrimination ‘in any program, plan or arrangement designed to promote equal opportunity for a group of people who are disadvantaged or have a special need because of a prescribed attribute.’

MONA argued that if their conduct was indeed discriminatory to Mr Lau, this exception applied. The argument was that the agreed purpose of the Ladies Lounge, was MONA’s to address gender imbalances in the art world by attempting to recreate historical instances where women were denied opportunities or entries into certain places due to their gender.

In assessing MONA’s submissions, the Tribunal considered whether the Ladies Lounge satisfied the criteria of a program designed to address gender disparities.

It was determined that although the Ladies Lounge may positively encourage the display of female artwork, it did not directly promote equal opportunity for female artists or assist female artists in getting their work displayed preferentially or at all. Restricting access to men does not advance the opportunity for female artists to showcase their work.

Notably, the Act contains an express exemption for public acts done in good faith, for artistic purposes, which could have applied to the Ladies Lounge. However, the exemption only applies in respect of vilification. The exemption does not apply to acts of discrimination.

Ultimately, the Tribunal found that the refusal to permit Mr Lau entry into the Ladies Lounge amounted to unlawful discrimination on the grounds of gender and ordered MONA to cease the refusal of entry for men within 28 days.

Take Home Messages

Where businesses wish to undertake activity which constitutes discrimination, even if the conduct is considered ‘positive discrimination’ to advance the causes of a disadvantaged group, they must carefully consider whether exemptions apply permitting such conduct. Different legislative schemes apply across the country.

If you require assistance in aligning your workplace practices with legislative standards regarding discrimination, please contact Lincoln Smith on +61 8 8210 1203 or lsmith@normans.com.au, Annabelle Narayan on +61 8 8210 1292 or anarayan@normans.com.au, or Shivani Gandhi on +61 8 8210 1227 or sgandhi@normans.com.au.