The Ladies Lounge exhibit at Hobart's Museum of Old and New Art will be open to all, if it remains, after a man complained when he was barred from entering.
Kirsha Kaechele's artwork at the museum she curates, which is owned by her husband David Walsh, may have had a point but violated the law, the Tasmanian Civil and Administrative Tribunal decision said.
"This case involves conflict between an artwork which deliberately and overtly discriminates for artistic purpose and legislation which has the objective of prohibiting discrimination," the tribunal's deputy president Richard Grueber said.
Jason Lau paid to visit MONA in April 2023 and was not allowed behind the exhibit's curtain because he is a man.
"Mr Lau was not happy with being refused entry," agreed facts in his complaint of discrimination said.
It also notes the refusal to admit him was "part of the art itself" as it was a "participatory installation".
He missed out on seeing "a tethered, rearing, restrained-by-golden-chains-and-then-ultimately-defeated phallus" among other works including two Picasso paintings and a gold jewelled crown Ms Kaechele wore at her wedding.
The lounge idea came during the Covid-19 pandemic, partially in response to public criticism that there were not enough places to sit, and has a counterpart in the Ladies Lounge Designed by Men, which does not restrict entrants.
Ms Kaechele described the lounge she designed as a response to women being historically forbidden from certain spaces, citing elite men-only clubs as a contemporary example.
"However, the act does not permit discrimination for good faith artistic purpose per se," Mr Grueber said, noting aspects of the case "may seem paradoxical".
The lounge may well legally be able to operate as a women-only club, and its legitimate artistic purpose could have saved it running afoul of the law if it had offended, humiliated, or incited hatred or severe ridicule of Mr Lau, rather than discriminating against him based on gender.
Inconsistencies in the stated intention of the artwork prevented MONA establishing a relevant equal opportunity exemption for the Ladies Lounge.
"It may have a valid moral or ethical or pedagogical purpose, but it cannot reasonably be intended to promote equal opportunity," Mr Grueber said.
He ordered MONA cease the discrimination, whether by allowing men into the lounge or removing the exhibit, within four weeks.
