LGBT rights in Austria

LGBT rights in Austria

Location of  Austria  (dark green)

– in Europe  (light green & dark grey)
– in the European Union  (light green)  –  [Legend]

Same-sex sexual activity legal? Legal since 1971,
age of consent equalized in 2002
Gender identity/expression Gender change is legal.
Military service Gays and lesbians allowed to serve
Discrimination protections Protection for sexual orientation in labor code since 2004, other protections vary by region (see below)
Family rights
Recognition of
relationships		 Unregistered cohabitation since 2003,
Registered partnership since 2010
Restrictions:
 Same-sex marriage not recognised
Adoption Stepparent adoption since 2013, Joint adoption since 2016

Lesbian, gay, bisexual, and transgender (LGBT) persons in Austria may face some legal challenges not experienced by non-LGBT residents.

Both male and female same-sex sexual activity are legal in Austria, and registered partnerships were introduced in 2010, and step-child adoption in 2013 and full joint co-adoption ordered by the Constitutional Court of Austria in January 2015. Same-sex marriage is still not recognized in Austria.

The country, while influenced by Roman Catholicism, has slowly become more liberal with laws and social opinions concerning sexual orientation and gender identity.

Law regarding same-sex sexual activity

Same-sex sexual acts have been legal since 1971. In 2002, the age of consent was equalized by a court decision from 18 to 14 years of age.[1] LGBT people are not prohibited from military service.

Recognition of same-sex relationships

Following the ruling of the European Court of Human Rights in Karner v. Austria in 2003, cohabitating same-sex couples were given the same rights as cohabitating opposite-sex couples.

First planned in 2007, registered partnerships have been legal in Austria since 1 January 2010.

The government has not legalised same-sex marriage due to opposition by the Austrian People's Party (ÖVP). The Greens have however introduced a bill in parliament, and in 2015 a citizens' initiative "Ehe Gleich!" was set up to petition the parliament to consider legalisation of same-sex marriage. They also filed a lawsuit challenging the current law, however it was dismissed by the court.[2] A second lawsuit was heard on 21 March 2016 in Linz and the written opinion will be released in a few weeks.[3] On 15 April 2016, the court dismissed the case as well.[4]

Adoption and family planning

On 19 February 2013, the European Court of Human Rights ruled in X and Others v. Austria that a partner in a same-sex union has the right to adopt his or her partner's biological child. On 4 July 2013, the Austrian Parliament passed a government bill that allows stepchild adoption by same-sex couples. The law entered into force on 1 August 2013.[5][6]

In January 2015, the Constitutional Court found the existing laws on adoption to be unconstitutional and ordered the laws to be changed by 31 December 2015 to allow joint adoption by same-sex couples.[7][8] On 30 October 2015, the Justice Minister announced that the ban would no longer be enforced starting on 1 January 2016, thus allowing the Court's decision to automatically cancel the joint adoption ban.[9]

Additionally, lesbian couples can get access to artificial insemination.

Discrimination protections

The federal Labour Code has included an anti-discrimination law since 2004, to follow the implementation of EU legislation prohibiting discrimination. Six out of the nine federal republics have established anti-discrimination laws within their area of competence that also cover sexual orientation. The 1993 Police Security Act requires the police to refrain from any actions that could create the impression of bias or that could be perceived as discrimination on the grounds of sexual orientation.

Vienna state has had its Youth Protection Law since 2002, and one city, Bludenz, has adopted a symbolic non-discrimination declaration which includes sexual orientation in 1998. The Federal Constitution theoretically protects all citizens equally but the reality is that it does not apply to sexual orientation and several judgements of the Constitutional Court confirm these unequal treatment.[10][11][12]

LGBT rights and political debates

In 1995, the International Human Rights Tribunal instigated the political discussion about the discrimination and persecution of LGBT persons in Austria. The first major parliamentary debates on that issue took place thereafter, initiated by the Liberal Forum (LIF) which was campaigning strongly against discrimination of homosexuals which at that time existed through §209, 220 and 221 StGB and for complete equality of treatment also including marriage and adoption. The Social Democrats (SPÖ) and the Green Party at that time showed support for the issue of equal treatment of same-sex couples.

After the LIF did not pass the four percent electoral threshold in the 1999 elections, the Social Democrats and the Green Party started to embrace this issue more. The SPÖ on its biannual Federal Party Convention made a decision on the issue of equal treatment of same-sex couples. They proposed a model of registered partnership ("Eingetragene Partnerschaft") including stepparent adoption. The Austrian Green Party introduced the civil pact ("Zivilpakt") as somewhat similar model to that of the Social Democrats in 2004.

However, progress is visible to a limited extend. Since 1998, Austria recognizes the right not to testify against their partner if the partner is of the same sex, as amended in Criminal Code. In 2001, the constitutional court rescinded §209 StGB which led to the introduction of § 207b as a substitute by the coalition of the conservative ÖVP and the right wing FPÖ. It is seen as being discriminating in a more indirect way than § 209 StGB. Following the decision of the European Court of Human Rights in case of Karner v Austria [2003], cohabiting same-sex partners are entitled to the same rights as unmarried cohabiting opposite-sex partners. In 2005, the Green Party campaigned heavily for registered partnership during the Vienna election campaign in 2005. On 26 July 2006, the first legal same-sex marriage came into existence, when Angelika Frasl, a transsexual woman with two children, was permitted by the constitutional court to change her legal gender to female while remaining married to her wife.

Karin Gastinger, a former member of the centre-right Alliance for the Future of Austria had claimed gay and lesbian couples to get rights to partners' estates and medical care in December 2005. However she failed in this case.[13]

It was not thought likely that the coalition of Conservatives and Social Democrats formed in 2007 would result in major steps towards more equality quickly. Although the then Minister of Justice, Maria Berger, a social democrat, intended to improve the situation, she herself expected huge opposition by the conservative coalition partner ÖVP,[14] most likely because her situation was similar to that of her predecessor Gastinger.

Furthermore, Maria Fekter, former chairperson of the parliamentary committee for judiciary and since 1 July 2008 minister of the interior repeatedly announced her opposition against registered same-sex partnerships and that conservative values will prevail (see p282)]. Though, despite such opposition, partnerships were approved in December 2009.[15]

Other, more conservative, political parties include Austrian People's Party and Freedom Party tend to oppose LGBT rights.

Additional controversies

Much speculation has been made about the sexual orientation of Jörg Haider, who took control of the right-wing Freedom Party in 1986 and then later created the more mainstream but still socially conservative Alliance for the Future of Austria.[16] The controversy continued after Haider's death in an accident on 11 October 2008. In 2009, some Austrian publications were forbidden by a Court injunction for "breach of personal and privacy rights of Dr Jörg Haider", and thus from making claims that Jörg Haider was not heterosexual.[17]

In addition, there has been an ongoing controversy regarding the disappearance of U.S. citizen Aeryn Gillern (born 1973) in Vienna,[18] on the evening of 29 October 2007 (especially his escape from the Kaiserbruendl Sauna). Family and friends of Mr Gillern expressed outrage at the rather negative comments made by some Vienna city policemen investigating the case, regarding their assumptions about Mr Gillern's lifestyle, and they are concerned that these attitudes have resulted in a deficient investigation and followup in this matter.

Living conditions

Regenbogenparade 2007

The gay community is developed in all larger cities, such as Vienna, Linz, Innsbruck, Salzburg, and Graz. Every year there is a gay pride Regenbogenparade (rainbow parade) in Vienna.

Summary table

Same-sex sexual activity legal (Since 1971)
Equal age of consent (Since 2002)
Anti-discrimination laws in employment (Since 2004 in employment, other laws vary by region)
Anti-discrimination laws in the provision of goods and services /Green tick (Only in state-run agencies in some regions)
Anti-discrimination laws in all other areas (incl. indirect discrimination, hate speech)
Same-sex marriage(s) (Pending)[19]
Recognition of same-sex couples (Since 2003)
Step-child adoption by same-sex couples (Since 2013)
Joint adoption by same-sex couples (Since 2016)
Gay men and women allowed to serve openly in the military
Right to change legal gender
Access to IVF for lesbians (Since 2014)[20]
Commercial surrogacy for gay male couples (Illegal for all couples regardless of sexual orientation)
MSMs allowed to donate blood [21]

See also

References

  1. ↑ "RIS Dokument". Ris2.bka.gv.at. Retrieved 4 November 2008.
  2. ↑ "Verwaltungsgericht lehnt Klage gegen Eheverbot für LGBT ab". thinkoutsideyourbox.net. 21 December 2015.
  3. ↑ Oberösterreich: Lesbisches Paar und Kind klagen gegen "Eheverbot"
  4. ↑ "Österreich: Zweite Klage auf Ehe-Öffnung gescheitert". Queer.de. 16 April 2016.
  5. ↑ Österreich führt Stiefkindadoption ein – Kirche poltert
  6. ↑ "Austria becomes the 13th European country to allow same-sex second-parent adoption". ILGA Europe. 1 August 2013.
  7. ↑ "Adoptionsverbot für homosexuelle Partner aufgehoben". Vienna Online. 14 January 2015.
  8. ↑ "Österreich: Adoptionsverbot für Homo-Paare verfassungswidrig". Queer.de. 14 January 2015.
  9. ↑ Homosexuelle dürfen künftig adoptieren – ohne Gesetzesnovelle
  10. ↑ "RIS Dokument". Ris2.bka.gv.at. Retrieved 4 November 2008.
  11. ↑ "RIS Dokument". Ris2.bka.gv.at. Retrieved 4 November 2008.
  12. ↑ "RIS Dokument". Ris2.bka.gv.at. Retrieved 4 November 2008.
  13. ↑ Malcolm Thornberry (16 December 2005). "Czech Republic, Austria Move To Legalize Gay Unions". Retrieved 14 August 2011.
  14. ↑ "Berger im STANDARD-Interview: "Bei Homosexuellen-Ehe etwas mehr zustande bringen" – Nachrichten in Echtzeit auf derStandard.at/Politik/Inland/Nach der Wahl – österreich...". Derstandard.at. Retrieved 4 November 2008.
  15. ↑ "Austria's parliament legalises civil unions". PinkNews.co.uk. 10 December 2009. Retrieved 11 December 2009.
  16. ↑ Out magazine, February 2009, Pg. 46 – 51.
  17. ↑ http://www.austriantimes.at/news/General_News/2009-11-19/18230/Newspapers_sentenced_for_'gay_Haider'_reports
  18. ↑ http://www.aeryngillern.com/
  19. ↑ (German) Allgemeines bürgerliches Gesetzbuch, Änderung
  20. ↑ Fortpflanzungsmedizingesetz im Ministerrat beschlossen
  21. ↑ Wer darf Blut spenden?
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