The controversial Ladies Lounge at Tasmania’s Museum of Old and New Art will be permitted to re-open and continue to refuse entry to men following a decision by the state’s Supreme Court that found it was not in breach of anti-discrimination law.
Mona’s six-month legal saga took a dramatic turn on Friday morning when Acting Justice Shane Marshall quashed a ruling made by the Tasmanian Civil and Administrative Tribunal in April that had ordered the museum to “cease refusing entry to the Ladies Lounge to persons who did not identify as ladies”.
Kirsha Kaechele (centre) and supporters celebrate the Ladies Lounge Supreme Court verdict on Friday morning.Credit: Jesse Hunniford
It took less than a minute for the Supreme Court judge to overturn on appeal the tribunal’s order. Marshall has now sent the matter back to the tribunal for reconsideration “in accordance with [his] reasons for judgment”.
While that means technically the legal battle is not over, Kirsha Kaechele, creator of the Ladies Lounge and wife of Mona founder David Walsh, greeted the decision as a win.
“In 30 seconds, the patriarchy was smashed, and the verdict demonstrates a simple truth – women are better than men,” a jubilant Kaechele said outside court in Hobart.
As she has done throughout this case, Kaechele arrived surrounded by a glamorous contingent of supporters, all wearing dark suits and pearls. This time she was also accompanied by her and Walsh’s nine-year-old daughter, Sunday.
The Ladies Lounge at Mona did not allow men.
Following the judgment, the group danced on the street outside the court to the tune of the Eurythmics and Aretha Franklin’s 1985 hit Sisters Are Doin’ It For Themselves, gleefully tossing copies of the judgment into the air like confetti.
Mona’s Ladies Lounge, a small, curtained-off, art-filled space open only to women, fell afoul of the law when a NSW man, Jason Lau, complained to Equal Opportunity Tasmania after being denied entry in April 2023.
Lau’s complaint was referred to the Tasmanian Civil and Administrative Tribunal. He represented himself at the hearing in March, appearing via video link, and won.
The tribunal ordered Mona to either close the Ladies Lounge, remove it, reform it, or allow men to enter.
Arguing that permitting men to enter the Ladies Lounge was counter to its ethos, Kaechele opted to close the space and appeal to the Supreme Court of Tasmania.
In quashing the tribunal’s decision on Friday, Marshall found it had made several errors of fact and law, among them a “mischaracterisation of what the Ladies Lounge was designed to promote and how that was intended to be achieved”.
Section 26 of Tasmania’s Anti-Discrimination Act 1998 allows discrimination to occur so long as it is used to promote equal opportunity for a disadvantaged group of people.
Mona’s lawyer, Catherine Scott, argued in court last week that the Ladies Lounge promoted equal opportunity for women by creating a “flipped universe” that allows men to experience what it’s like to be discriminated against, invoking the spirit of places such as historical ladies’ lounges and current elite men’s clubs.
Lau’s barrister in the appeal, high-profile Hobart lawyer Greg Barns, acting pro bono, had argued that the Ladies Lounge could not be exempt under section 26 because it did not address the ongoing inequities faced by women in any definitive or substantive way.
Kaechele holds up a placard after the verdict was handed down on Friday.Credit: Mona/Jesse Hunniford
In response, Scott cited the Australian Government Status of Women Report Card 2024, which was released in March, as evidence of women’s ongoing disadvantage.
Acting Justice Marshall echoed this in his judgment, writing: “The Report Card shows the entrenched disadvantage experienced by Australian women compared with men. Read as a whole it amply demonstrates current societal disadvantage.”
He added that there was no need for the Ladies Lounge to achieve “substantive equality between men and women” to be granted the exclusion afforded by Section 26.
“It is sufficient that the arrangement promotes equal opportunity for women who as a gender are disadvantaged in society because of that gender,” the judge wrote.
‘The men are a little hysterical’
For Kaechele, this was cause for elation: “The judge sided with us, in that section 26 provides protections for the Ladies Lounge. It falls under the exception in the Anti-Discrimination Act, and that means that the Ladies Lounge is exceptional,” she said.
“We’ll see how the men take it. The men are a little hysterical. I’m a bit concerned they’re troubled by the power of women. They may appeal, but they’re not appealing to me.”
Lau’s barrister, Greg Barns, was approached for comment but did not respond in time for publication. He left the court immediately after the judgment without addressing the media.
Catherine Scott noted that the battle wasn’t entirely over, but felt optimistic about the likely outcome.
“The tribunal is required to make a fresh decision in accordance with what the court says they should have done, and there’s so much guidance in [the judgment] on what they should have done that we have a degree of confidence of the likely result,” she said.
So what next for the Ladies Lounge?
“There are plans in the works, and some kind of celebration,” Kaechele said. “We’ll definitely be inviting women to come and celebrate with us.”
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