Tasmania’s Museum of Old and New Art (Mona) has won an appeal in the state’s supreme court in a bid to continue barring men from entering an installation known as the Ladies Lounge.
The exhibit was closed in April after Tasmania’s civil and administrative tribunal ordered the museum to admit men to the female-only space, upholding a Sydney man’s complaint that the museum had discriminated against him on the basis of gender.
But on Friday, the supreme court found the Ladies Lounge qualified for an exemption from the state’s anti-discrimination act under a section that allows discrimination if the intention behind the action is to promote equal opportunity for a group of people who are disadvantaged or have a special need.
“The Ladies Lounge can be seen as an arrangement to promote equal opportunity by highlighting the lack of equal opportunity, which generally prevails in society, by providing women with a rare glimpse of what it is like to be advantaged rather than disadvantaged by the refusal of entry to the Ladies Lounge by men,” justice Shane Marshall said in Friday’s decision.
The tribunal had made several errors of fact and law, including the mischaracterisation of what the Ladies Lounge was designed to promote and how that was intended to be achieved, the judge said when quashing the 9 April decision and sending the case back to the tribunal to be reconsidered.
A museum spokesperson later said Mona would not be reopening the Ladies Lounge until it received further instruction from the tribunal.
The artist behind the installation, Kirsha Kaechele, described Friday’s decision as a “day of triumph” for women and the museum.
“The patriarchy [has been] smashed and the verdict demonstrates a simple truth: women are better than men,” she said outside the supreme court.
“The judge sided with the facts presented by our all-female team. He agrees, the Ladies Lounge is exceptional.”
Mona’s lawyer, Catherine Scott, successfully argued during the 17 September hearing in Hobart that the Ladies Lounge was an artwork that existed to “highlight, and challenge, inequality that exists for women in all spaces today – by providing a flipped universe where women experience advantage”.
Greg Barnes, the lawyer representing Jason Lau, who lodged the complaint of discrimination in the tribunal, argued during the appeal that the artwork’s purpose was solely to reflect on historical disadvantage, and as such it could not be classified as an example of positive discrimination to promote equal opportunity in contemporary society.
But Marshall said on Friday that Mona’s lawyers had provided the court with ample evidence that women continue to be disadvantaged today, including the government’s 2024 Status of Women report, which found that about one in three Australians hold a negative bias about women’s ability to participate economically, politically or in education.
The judge said he was satisfied the Ladies Lounge sought to highlight current and historical disadvantage and, by excluding men, had provided a space “for the reversal of the commonly prevailing power imbalance between the sexes in Australia”.
He accepted Mona’s argument that as a participatory artwork, the process of being admitted or refused admission to the Ladies Lounge was “part of the art itself”.
In a written statement, Kaechele said she was “grateful to the men who brought us on this journey”, including Lau, because the case – which made international headlines – had “invited people all over the world to think about the experience of women and the social structures we inhabit”.
“Now more than ever it is important for us to challenge our perspectives with open interest, and refine our understanding,” Kaechele said. “I have enjoyed every minute of this process.”
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