Rights in Exile Programme

Refugee Legal Aid Information for Lawyers Representing Refugees Globally

Austria LGBTI Resources

 

(See Below for Case Law, Evidence of Public Attitudes, NGOs that Assist or Advocate on LGBTI issues, and Country of Origin LGBTI Specialists)

 

Constitution

Same-sex relationships have been legal in the country since 1971. Article 7(1) of the Austrian constitution states: ‘All federal nationals are equal before the law.’

National Service is obligatory for all male citizens of Austria, regardless of sexual orientation. Article 9(a)(3) of the Constitution states that: ‘Every male Austrian national is liable for military service… The details are settled by law.’

Criminal Code

With effect from 1st January 2012, Article 283 of the Austrian Criminal Code was amended to protect LGB people in its provisions prohibiting incitement to hatred through the inclusion of sexual orientation in the list of protected grounds. Previously, the law only referred to the grounds of race and ethnic origin and religion.

Common Law

Austrian law does not allow the marriage of same-sex couples, but following the decision of the ECHR in Karner v Austria (2003), cohabiting same-sex partners are entitled to the same rights as unmarried cohabiting opposite-sex partners.

 

CASE LAW

E.B. and Others v Austria (2013)

Article 209 of the Austrian Criminal Code, prior to its abolishment in July 2002 and its replacement with Article 207b, made male same-sex sexual intercourse between male homosexuals under the age of 18 illegal, whilst the age for consent for heterosexuals (and lesbians) was 14. E.B. and Others v Austria (2013) saw an unanimous ruling from the ECHR in favour of four homosexual men appealing to quash their criminal convictions for same-sex sexual conduct with males under the age of 18, at the time when Article 209 was still in force. The ECHR held that keeping these convictions on record could have serious consequences for the persons concerned and that there had been a violation of Article 13 ECHR, as well as Article 14 read in conjunction with Article 8 of the Convention.

X and Others v Austria (2013)

In X and Others v Austria (2013) three applicants, a female same-sex couple and the biological child of one of the partners, criticised that their legal exclusion from second parent adoption constituted discrimination contrary to Articles 8 and 14 of the ECHR. Second parent adoption is available to married and unmarried heterosexual couples in Austria, but unavailable to same-sex couples, as stipulated in Article 182(2) of the Civil Code. The case presented to the court emphasised the blanket exclusion of same-sex couples from second parent adoption by Article 182(2) rather than any aspect of the merits of their individual adoption application.

The Court held by a majority (ten to seven) that there had been a violation of Article 14 taken in conjunction with Article 8 of the Convention on account of the difference in treatment of the applicants in comparison with unmarried heterosexual couples in which one partner wished to adopt the other partner’s child; and, unanimously, that there had been no violation of Article 14 taken in conjunction with Article 8 when the applicants’ situation was compared with that of a married couple in which one spouse wished to adopt the other spouse’s child.

Karner v Austria (2003)

In Karner v Austria (2003) the applicant had shared a flat with his partner, the leaseholder. The latter died after designating the applicant as his heir for the tenancy. Nevertheless, the landlord brought proceedings against Mr Karner to terminate the tenancy. The district court, and subsequently the regional court, dismissed the action, considering that the statutory right of family members to succeed to a tenancy also applied to persons in a homosexual relationship. But that decision was nullified by the Supreme Court, which found that the legislature's intention, in 1974, had not been to include persons of the same sex. The case went before the ECHR and for the first time in its history the ECHR ruled that this was discrimination based on sexual orientation and the court held, by six votes to one, that there had been a violation of Article 14 of the Convention taken in conjunction with Article 8. Following this decision co-habiting same-sex partners are entitled to the same rights as unmarried cohabiting heterosexual couples.

 

PUBLIC ATTITUDES AND/OR STATE’S CAPACITY TO PROTECT

Societal Attitudes

To mark 15 years of Vienna’s LGBT anti-discrimination office (‘Antidiskriminierungsstelle für gleichgeschlechtliche und transgender Lebensweisen – WASt’) – the first such office of its kind in Austria – the EU Agency for Fundamental Rights Director, Morten Kjaerum, delivered a keynote speech on 3rd October 2013. In it he spoke about many of the findings from the Eurobarometer Antidiscrimination Survey of 2012, including findings on attitudes towards LGBT in Austria. Regarding LGB, the survey diagnosed that: ‘[S]ix out of 10 Austrians would be comfortable with having a gay, lesbian or bisexual person appointed to the highest elected political position’. Attitudes towards trans- persons are more negative: ‘[T]ransgender or transsexual people were among the least accepted groups in the survey (by only half of the respondents).’ Another notable result to highlight are the low-levels of reporting on violence and discrimination against LGBT persons: ‘only around one fifth of Austrians brought the most serious incidents of LGBT-motivated violence which had happened to them in the last five years to the police’s attention’. Intersex persons are not covered in the survey.

In an article on the Vienna Review website, Anna Claessen notes that while various improvements have been made in the social acceptance of the LGBTI community with certain statutory enactments aimed to help protect their rights and well-being, there remains the problem of discrimination, potentially due to the influence of Catholicism in the country. She cites Marty Huber’s theories that many politicians have Catholic Church traditions and values ‘culturally instilled in them’ and, Huber goes on to argue, ‘it would never have taken so long to abolish the laws against homosexuality had this influence not existed.’

Austrian trans singer Conchita Wurst (Thomas Neuwirth) won the Eurovision Song Contest in 2014, which is seen as a testament of increasing LGBT support and acceptance. In the wake of her win at the contest, Austria’s Education Minister, Gabriele Heinisch-Hosek, instructed schools to ‘re-issue grade transcripts to transgender persons who have requested that they be identified by another sex’ in the hope to lessen the likelihood of discrimination when the transcripts are included in job applications.

The austriantimes.at unveiled statistics which showed that Austrian peoples’ views on the adoption of children by homosexual couples was more positive than most other European countries. However, Austria was below the EU average when it came to the question of living next door to homosexual persons: ‘Austria has 7.4 points on a scale from one to ten in that regard, compared to the EU average of 7.9 points.’

In the Country Report on Human Rights Practices for 2013 compiled by the United States Department of State, Bureau of Democracy, Human Rights and Labor it states that there was ‘some societal prejudice against LGBT persons; however, there were no reports of violence or discrimination based on sexual orientation or gender identity. LGBT organizations generally operated freely (pg17-18).’ The same report also stated that according ‘to an EU Fundamental Rights Agency study, the situation of LGBT rights was “mediocre”’, but described Vienna as being at ‘the vanguard’ of LGBT rights.

The ‘Vienna – for gay travelers’ page of the 'Austria: arrive and revive' website promotes the city as a very welcoming and accepting destination for gay and lesbian people saying that ‘Vienna does not have a single predominantly gay and lesbian neighbourhood, the city has a quite lively and diverse gay and lesbian scene’ and not to ‘expect a large number of “gay only” places in Vienna, but rather an abundance of “gay friendly” and mixed places throughout town.’

 

NON-GOVERNMENTAL ORGANIZATIONS (NGOs)

No NGOs supporting LGBTI persons in Austria are currently listed here, but we welcome suggestion.

 

COUNTRY OF ORIGIN SPECIALISTS

No specialist on LGBTI issues in Austria is currently listed here, but we welcome suggestions.

 

Researched by: Matt Lewins
Email: mattlewinsatyahoo [dot] co [dot] uk

 

 

 

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