Last drinks at the Ladies Lounge

A women’s only exhibition space prompted a strange legal case with a touch of surrealism, writes Morry Bailes.

Jul 04, 2024, updated Jul 04, 2024
A Ladies Lounge exhibit at Museum of Old and New Art (MONA) in Hobart. The exhibit closed after a tribunal ruled it unlawfully discriminated, but the story doesn't end there. Photo: AAP/Museum of Old and New Art

A Ladies Lounge exhibit at Museum of Old and New Art (MONA) in Hobart. The exhibit closed after a tribunal ruled it unlawfully discriminated, but the story doesn't end there. Photo: AAP/Museum of Old and New Art

Sometimes fact is stranger than fiction.

An attempt to prevent men from entering a designated women’s only area of the Museum of Old and New Art (MONA) in Tasmania led to a complaint of discrimination and litigation before the Tasmanian Civil and Administrative Tribunal (TASCAT). The twists and turns of this strange legal tale make it irresistible reading, with the strangest of endings.

I encountered the MONA women’s only lounge when in MONA with my family a couple of years ago.

I have two sons and we asked what lay behind a rich velvet curtain, and were condescendingly told that my wife could enter to find out, but we, the males, could not. I remarked to my family at the time that it seemed blatantly discriminatory, but we shrugged it off.

What I could not shrug off was the sense of glee on the part of the male and female staff members in telling my sons and me that we could not enter. As to my wife, thoroughly put out by the whole charade, she declined to avail herself of the offer to see what we men could not.

Jason Lau, who had travelled from NSW to see the gallery was a little more affronted by similar treatment – so much so that he lodged a complaint with the TASCAT alleging discrimination on the basis of gender, contrary to the Tasmanian Anti-Discrimination Act 1998.

The history of the MONA Ladies Lounge dates from 2020, when in an attempt to “address historical gender discrimination”, the gallery’s owner Moorilla Estate Pty Ltd and its art curator Kirsha Kaechele created an experimental art space that was open to women only, or those who identified as women.

Kaechele is married to David Walsh, the famed professional gambler whose riches have funded the creation of MONA. The exhibition space even boasted a high tea for women, at the right price. At the centre of the lounge was an irresistible drawcard; several stunning Picassos of vast value, all for female eyes only.

When the litigation began, Lau asserted that in breach of three sections, 14, 16 and 22, of the Anti-Discrimination Act, MONA and its owner had “directly discriminated” against him, had additionally discriminated against him on the basis of gender, and lastly, had discriminated against him in the provision of facilities, goods and services.

MONA in turn relied on an exemption under the Act it said applied to the women’s only exhibition space, in particular that the ordinary operation of the Act did not apply, and it could lawfully discriminate as the exhibition constituted a “program, plan or arrangement designed to promote equal opportunities” for groups with disadvantage.

The group so disadvantaged, it argued, was women.

The creation of the women’s only area was to address historical disadvantages experienced by women in accessing spaces and opportunities for female artists. The Piscassos thus were not to be seen by men.

Lau argued the opposite, asserting that in negatively discriminating against men, the historical plight of women was not being addressed by the exhibition space.

His argument in this respect might be summarised as a “two wrongs don’t make a right” approach.

Indeed one might detect in the MONA argument an ex post facto attempt to validate what otherwise appears on the face of it to amount to gender discrimination, by draping it in the appearance of a “program” when – as Lau argued – in reality such a program did not exist.

He also pointed to the fact that his ticket cost as much as an equivalent woman’s ticket, but he was excluded from seeing the entirety of the gallery on the basis of gender, whereas a woman was not.

Ultimately the MONA argument did not fare very well with the decision maker, Greuber of the TASCAT.

Because there was no actual program to assist females such as courses or scholarships designed to enable female artists, he found the setup failed to attract the exemption contained in section 26 of the Act. Instead, it was indeed discriminatory.

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In Greuber’s words: “the refusal to permit Mr Lau entry to the Ladies Lounge was direct discrimination”. And although women had historically experienced denial of access to places, there was insufficient evidence to support an argument that that remains so today.

Greuber did not remark on the obvious irony to the whole Ladies Lounge concept, but I shall.

The irony is the biggest attraction in a female-only space was the works of a male artist – one reputed to be a misogynist. Make of it what you will, but there is more than a hint of commerciality in MONA’s position.

The upshot to the case was an order by the TASCAT directing MONA to open the exhibition space to men within 28 days. I was rushing out to buy my airfare to Hobart when Kaechele spoilt the party.

She said, “Given what (women) have been through for the last several millennia… we deserve both equal rights and reparations, in the form of unequal rights, or chivalry-for at least 300 years”. She then intimated an intended appeal by MONA and its owner against the outcome “for the good of art and the law”, and promptly closed the exhibition space to the public altogether.

It is what has happened since that could go in the surrealist section.

Whereas MONA toilets were unisex, there is now a designated female toilet, and you guessed it, the Piscassos have ended up in there.

You have to give that one to Kaechele for pure inventiveness.

“We never had female toilets at MONA before, they were all unisex. But then the ladies lounge had to close thanks to a lawsuit brought on by a man and I just didn’t know what to do with all those Picassos,” she said.

As for Lau, he must be gnashing his teeth in frustration.

And MONA isn’t done yet.

Kaechele is looking to re-design the exhibition to place it properly within the section 26 exemption, presumably designing a program for women and women artists that will genuinely attract the protection of the section. One might ask if MONA’s intention truthfully was to assist women in the first place, why it took until the decision of the TASCAT to cause the gallery to now establish a real program for women.

Another alternative evidently being considered by MONA is that the whole exhibition space will become a female toilet.

Meantime some very valuable Piscassos sit holed up in the former unisex toilets, once again to be seen only by women or those who identify as women. What would the TASCAT find if a further discrimination complaint is lodged, or has Kaechele outwitted the law?

Only time will tell in one of the strangest legal stories in many a year, and one that may not yet be over.

The case is Lau v Moorilla Estate Pty Ltd [2024] TASCAT 58, or as it might be colloquially known, “How the Piscassos ended up in the privy”.

Morry Bailes is Senior Lawyer and Business Advisor to Tindall Gask Bentley Lawyers, past president of the Law Council of Australia and a past president of the Law Society of South Australia

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