The Deputy President of
The decision highlights that while 'discrimination' in gender-exclusive clubs is lawful within the exception of
I. Background
In
The artist of the
II. The issue of discrimination
The key issue was whether MONA could lawfully discriminate non-female identifying persons from entering the 'Ladies Lounge' exhibit.
After considering the evidence, Deputy
The decision therefore turned on whether the 'Ladies Lounge' was a 'program, plan or arrangement designed to promote equal opportunity for a group of people who are disadvantaged or have a specific need because of their gender' allowing it to fall within an exception to discrimination provided by section 26 of the Anti-Discrimination Act 1998 (TAS).
a) Does section 26 permit the
In considering whether the discrimination fell within the exception of section 26 of the
The artist,
To determine whether the 'Ladies Lounge' fell within this exception, the Deputy President considered the following issues:
- Can the 'Ladies Lounge' be a program, plan or arrangement? [42] - [45]
- Are women a group of people who are disadvantaged or have a special need because of gender? [46] - [50]
- Is the 'Ladies Lounge' designed to promote equal opportunity? [51] - [55]
In his consideration of the issue above from [65]-[76], the Deputy President was not satisfied that the evidence tendered by Moorilla on behalf of MONA demonstrated that the design or intention of 'Ladies Lounge', in its discrimination of men, promoted equal opportunity by affecting a disadvantage.
The Deputy President noted that
In response to MONA's submission that the artwork made a statement regarding the disparity between the display of art by male and female artists, the Deputy President considered that, it did not of itself promote the opportunity for art by women to be displayed. Furthermore, the Deputy President concluded that MONA could not reasonably consider that by excluding men from the exhibit, the artwork was capable of promoting equal opportunity of the display of art by women.
With respect to the submission that the artwork was a statement regarding the disadvantage experienced by women in respect to access to spaces, the Deputy President acknowledged past systemic disadvantage but considered that there was no evidence raised in relation to the contemporary exclusion of woman from spaces. The evidence of contemporary exclusion was limited to a reference of men-only clubs and
The Deputy President found that the reference to men-only clubs and
The Deputy President also considered that even if the disadvantage was established, 'the discrimination experienced by
III. Other issue
Additionally, the Deputy President also criticised the behaviour of a group of 20 women who engaged in 'performance art' at the hearing in support of MONA, stating that 'at the very least it was inappropriate, discourteous and disrespectful and at worst contumelious and contemptuous' [78].
IV. Conclusion
The decision highlights that artworks such as the
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