Featured photo by ABC News' Ebony ten Broeke
‘IN 30 SECONDS, THE PATRIARCHY WAS SQUASHED, AND THE VERDICT DEMONSTRATES A SIMPLE TRUTH – WOMEN ARE BETTER THAN MEN’- KIRSHA KAECHELE
In a landmark decision, the Tasmanian Supreme Court overturned a ruling on a women-only art installation, the Ladies’ Lounge, by curator Kirsha Kaechele, at the Museum of Old and New Art (Mona). Kaechele’s participatory installation sought to create a space that explored and elevated women’s experiences—inherently gender-specific. However, excluding men was an integral message to the art theme, by no means subordinating or demeaning them. Therefore Mr Lau had in fact experienced the artwork as his exclusion was incidental to the overall objective of the exhibition, which was to show the lived experiences of women prohibited from entering certain spaces throughout history (Elvos, 2024).
This social commentary became a global sensation and sparked an intense debate over the frontiers between art expression and the law, specifically how the law would approach such a unique circumstance (Broucher, 2024). This judgment bolsters the debate about balancing anti-discriminatory laws and artistic expression. It holds particular resonance in South Africa’s jurisdiction, where anti-discrimination law similarly grapples with competing rights.
The case of the Ladies’ Lounge
The 'polemical' started in April 2023 when Mr Lau was denied entry to the Ladies’ Lounge. In response, he filed a complaint with Tasmania’s Anti-Discrimination Commissioner, asserting that his exclusion violated his rights under Tasmanian’s anti-discrimination Laws, section 2 (Tasmanian Anti-discrimination Act 1998).
The case made its way to the tribunal, and in an initial ruling, the museum was ordered to shut down the installation, citing unlawful discrimination. This case is better covered by J Elvos in her recent blog post.
However, the Tasmanian Supreme Court has reversed this ruling, siding with Mona and, by extension, Kaechele’s vision. In Mona’s arguments, they did not deny the exclusion was direct discrimination but argued it was permitted under section 26 of the Act, which says:
‘Any person may discriminate against another person in any project, plan or arrangement designed to promote equal opportunity for a group of people who are disadvantaged or have a particular need because of a prescribed attribute.’
The Ladies' Lounge was found to fall within the scope of the Section 26 provision, therefore it was held that the installation’s existence, including the message it provides, was permissible (Frankhuizjen, 2024). In coming to this conclusion, the significant question before the court was whether the exhibition aimed to promote ‘equal opportunity’, to which acting justice Judge Shane Marshall stated that the lounge was purposefully designed to promote equal opportunity for women, thus justifying its exclusion of men (Kerrin, 2024) (Lawson-Tancred, 2024). He further stated that the
‘intention was to promote equal opportunity by drawing attention to the present and past societal disadvantage of women by providing them with the concept of a “flipped universe”, and a space exclusive to themselves so that it provides women with a rare glimpse of what it is like to be advantaged rather than the evident ‘general societal disadvantage’ women experience' (Judge Shane Marshell).
The court held that the artwork’s exclusion of men could be justified based on its artistic intent and cultural context. The court's reasoning drew upon the need to protect creative freedom and ensure that art installations could explore complex issues, including gender dynamics, without automatically being perceived as discriminatory.
Art, at its core, has always had ‘problematic’ underlying issues, but it always pushed boundaries that needed to be forced to be questioned.
The Ladies’ Lounge was an active statement on gender dynamics, seeking to provide women with a space. Her art piece is against the homogenisation of artistic spaces, affirming that art should not be forced into a ‘one-size’ fits all mold to avoid offending sensibilities.
Exclusion or Expression?!
’Their experience of rejection is the artwork,’ the artist said.
The central issue was whether excluding men from the Ladies' Lounge constituted a legitimate artistic expression or an undeniable act of unfair discrimination.
If this issue were translated into South African jurisprudence, the courts would have to recognise that specific distinctions are necessary to achieve equality, especially where these distinctions are tied to historical disadvantage. This is established in section 9(2) of the Constitution of the Republic of South Africa, 1996, which endorses positive measures to redress inequality. In this way, a women-only space, like the Ladies’ Lounge, would be viewed as a transformative goal, providing a platform for women to reclaim agency in a world where they are often marginalised.
Art has always been a medium for individuals to express themselves, provoke reflection, and challenge established norms. Thus, it can be argued that discrimination laws should not be applied rigidly, using a ‘one size fits all’ model, primarily when art intentionally engages with sensitive themes such as gender, exclusion, or identity (Vaughan, Blayney & Boydell, 2022) .
When exclusion or any act that may be deemed as discriminatory is pushed into the medium of art, the question arises of whether it is discriminatory. In South African law, the answer would be found through understanding fairness and purpose. It is essential to question whether the exclusion is part of a broader narrative that seeks to advance societal knowledge of specific issues, if this is the case it may have the potential to pass constitutional muster.
Balancing Rights: Art; Gender and Discrimination
This particular judgment highlights a crucial issue: balancing rights in a legal system that seeks to eliminate unfair discrimination while respecting artistic freedom. It raises critical questions:
Is exclusion through art inherently discriminatory, or can it be justified as a part of the narrative the artist is creating? Should art pieces be a protected space whereby gender-specific experiences are highlighted?
The decision in this case reaffirms that discrimination laws, while central to promoting equality, should not be used to restrain artistic expression. There are times when selective participation is not about perpetuating inequality but about fostering unique experiences (Frankhuizjen, 2024).
South Africa’s Legal System: The Parallel Debate
In South Africa, legal tension exists between anti-discriminatory principles and other competing rights. The Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) discusses that any form of discrimination (direct or indirect) will always be subject to legal scrutiny. Similar to the Tasmanian Court decision, South Africa’s legal framework also recognises that certain forms of exclusion are permissible under specific circumstances, provided that they serve a legitimate purpose and meet the required standard of fairness.
In the case of Qwelane v South African Human Rights Commission (2021), it was emphasised that not all forms of exclusion or differentiation are automatically unconstitutional or unfair. It consistently held that a nuanced approach is required when balancing competing rights, such as the rights to freedom of expression and to dignity. (Para 46) While this particular judgment is based on hate speech, the premise of this case provides a valuable lens through which to view discrimination in South Africa. Similarly, under PEPUDA, discrimination is evaluated on whether it amounts to unfair discrimination that impacts human dignity. This provides a compelling illustration of how an art piece, such as the Ladies’ Lounge where there is differential treatment between genders, could be justifiable in the South African context.
Ultimately, the Tasmanian judgment allows us to understand that law and art cannot exist in isolation. Both fields tend to clash as they are inherently interpretive and share core values such as ‘equality, freedom, and dignity’.
The tribunal's ruling on Mona’s Ladies’ Lounge is a proud victory for Kirsha Kaechele and artists’ worldwide who use complex and controversial issues to navigate their work. The Tasmanian case offers valuable insights into how legal systems can accommodate equality and freedom of expression, allowing art to remain a powerful tool for social change.
Bibliography
Kerrin T "Men are a little hysterical: Mona Ladies Lounge wins discrimination decision appeal" (27-09-2024) SBS NEWS <MONA Ladies Lounge wins discrimination decision appeal: 'A triumph' | SBS News>.
Frankhuizen S "Kirsha Kaechele's Ladies Lounge: The Art Gallery Championing Women's Voices Interrupted by a Crying Man" (09-09-2024) Her Campus <Kirsha Kaechele's Ladies Lounge: The Art Gallery Championing Women's Voices Interrupted by a Crying Man (hercampus.com)>.
Boucher B "A Man Sues a Museum Over its Women-Only Exhibition" (22-03-2-24) Artnet <A Man Sues a Museum Over Its Women-Only Exhibition (artnet.com)>.
Tancred-Lawson J "It Took 30 Seconds to Quash the Patriachy: Court Rules Favour of Viral Women-Only Exhibition" (27-09-2024) Artnet <‘It Took 30 Seconds to Quash the Patriarchy’: Court Rules in Favor of Viral Women-Only Exhibition (artnet.com)>.
Vaughan P, Blayney A & Boydell K "Sometimes, I don't have the words for things how are we using art to research stigma and marginalisation" (11-07-2022) The Conversation < ‘Sometimes I don’t have the words for things’: how we are using art to research stigma and marginalisation >.
Elvos J "A man’s world: Women-only art exhibition faces pushback" (23-07-2024) Stellenbosch Art Law Clinic.
Edited by Olivia Jarvie
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