The owners of the Museum of Old and New Art (MONA), Moorilla Estate Pty Ltd, have won an appeal in the Supreme Court of Tasmania allowing them to continue refusing men entry to its ‘Ladies Lounge’: a private lounge opened in 2020 and which is only accessible to ‘ladies’.

Key Takeaways

This case provides significant insight into the proper application of s26 of the Anti-Discrimination Act 1988 (TAS) (the Anti-Discrimination Act) but is also an important general reminder that some discriminatory conduct may be permitted, or subject to an exception, under various anti-discrimination frameworks across the country.

The Discrimination Complaint

On 1 April 2023, Mr Jason Lau attended MONA and attempted to enter the Ladies Lounge. As Mr Lau does not identify as a lady, his entry was denied. He later filed a complaint with Equal Opportunities Tasmania, which was then referred to the Tasmanian Civil and Administrative Tribunal (Tribunal) for determination. Mr Lau alleged that by denying him entry to the Ladies Lounge he had been discriminated against on the basis of his gender.

Mr Lau was initially successful, with the Tribunal finding that he had been directly discriminated against on the ground of gender in the provision of facilities, goods and services. However, the core issue in dispute was whether the discrimination was permitted by virtue of the Equal opportunities provision under s26 of the Anti-Discrimination Act which states that:

“a person may discriminate against another person 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”.

In its decision the Tribunal focused on how the Ladies Lounge sought to address particular disadvantages faced by women (being access to spaces and the display of artwork by female artists compared to male artists). Ultimately, the Tribunal found that the Ladies Lounge did not, nor was it capable of, promoting equal opportunity with respect to the particular disadvantages identified.

The Tribunal ordered MONA to cease refusing entry to individuals who did not identify as ladies to the Ladies Lounge. Instead MONA decided to close the exhibit.

Appeal to the Supreme Court

On appeal, the Supreme Court of Tasmania (Court) disagreed with the Tribunal’s application of s26 of the Anti-Discrimination Act. The Court confirmed that the identification of any particular disadvantage was unnecessary given that the 2024 Status of Women Report Card, submitted to the Tribunal in its entirety, was broader than the particular disadvantages identified by the Tribunal and made crystal clear to the reader the broad societal disadvantages faced by women. This led the Court to find that the Tribunal had mischaracterised what the Ladies Lounge was designed to promote and how that was intended to be achieved.

Instead, the Supreme Court accepted that the intention of the Ladies Lounge was to draw attention to past and present disadvantage women have experienced by providing the concept of a “flipped universe”, stating that “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.” The matter has now been remitted to the Tribunal for reconsideration.

Conclusion

The Tribunal is yet to redetermine the matter, but we look forward to seeing how it approaches the issue following the commentary made by the Supreme Court. We also look forward to seeing the ways in which this decision might prompt, or give guidance to, further consideration of the scope of exceptions under anti-discrimination frameworks.

It is important to remember that the application of discrimination law can be complex, and the legislative frameworks vary across jurisdictions. If an issue arises, it is important to seek specialist legal advice. Moray & Agnew regularly acts in discrimination matters for both applicants and respondents. Discrimination matters are also a core component of our Pro Bono Practice, a key way in which we give back to the communities in which we live and work.

Further information / assistance regarding the issues raised in this article is available from the authors, Jane Thomson, Partner and Lauren Stubbs, Senior Associate, or your usual contact at Moray & Agnew.