Exception to Anti-Discrimination Law: Promoting Equal Opportunity
In 2024, the Tasmanian Supreme Court decided a case relating to whether sex discrimination was permissible under the state’s Anti-Discrimination Act on the basis that it was done in the interests of promoting equal opportunity. This page outlines the decision.
Moorilla Estate v Jason Lau 2024
The case of Moorilla Estate v Jason Lau 2024 involved the plaintiff, Mr Lau, making a complaint of discrimination after being refused entry to an artwork because he was male. The plaintiff complained to Equal Opportunity Tasmania, which found that he had been subjected to direct discrimination contrary to the Anti-Discrimination Act 1998. It ordered Moorilla Estate, the company that owned the museum, to cease refusing entry to people ‘who did not identify as ladies.’
Moorilla Estate appealed against the decision.
The Ladies Lounge
In 2020, the Museum of New and Old Art (MONA) in Tasmania exhibited an artwork called The Ladies Lounge. The work consisted of a private lounge enclosed by a curtain, with entry supervised by an attendant who did not permit entry to anyone who did not identify as female. The Ladies Lounge was an interactive installation, with the restriction of access to those who identified as female being central to its concept.
Prohibition against sex discrimination
The Anti-Discrimination Act 1998 prohibits direct or indirect discrimination on the basis of prescribed attributes, which are set out in section 16. These prescribed attributes include gender, gender identity and sex characteristics.
Equal opportunity
Section 26 of the Anti-Discrimination Act 1998 provides an exemption from the prohibition against discrimination in situations where discrimination occurs in order to promote equal opportunity for a group that is disadvantaged or has special needs because of a prescribed attribute.
The Tribunal decision
The Tribunal was asked to decide whether The Ladies Lounge was a preparation, plan or arrangement designed to promote equal opportunity for women in the context of broad social disadvantage.
In its submissions, the defendant said that The Ladies Lounge was designed to address current and past wrongs regarding gender imbalance and that it “can make us [as in women] think, it can make us feel, it can provide an example and it can help us participate in things that are foreign to us”.
In its evidence, the defendant relied on the 2024 Status of Women Report Card, which outlines instances of structural disadvantage against women in Australian society, both currently and historically. It argued that the artwork was designed to highlight these disadvantages by providing a ‘flipped universe’ where woman hold the power and that women participating in the artwork were able to experience female privilege in a way not usually available to them.
The Tribunal found against the defendant, saying it had failed to highlight any particular disadvantage suffered by women and had failed to produce evidence of women being historically excluded from spaces. It found that the artwork was not designed to promote equal opportunity for female artists.
The Supreme Court decision
The Supreme Court found that the Tribunal had mischaracterised the evidence. The defendant had not sought to establish that the artwork aimed to provide an art space for female artists. Rather, it sought to address gender inequality more broadly and to promote equal opportunity by providing women with a reverse experience where they were advantaged and men disadvantaged.
The court found that the artwork aimed to promote equal opportunity and that it was objectively reasonable to believe that equal opportunity could be promoted in this way. It found that the group of people sought to be advantaged (women) had a special need (having a disadvantage redressed and addressed on an ongoing basis) because of a prescribed attribute (gender).
The Ladies Lounge installation is still operating/on display at MONA.
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