LGBT rights in Austria

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LGBT rights in Austria
Location of  Austria  (dark green)– in Europe  (light green & dark grey)– in the European Union  (light green)  –  [Legend]
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
Unregistered cohabitation since 2003,
Registered partnership since 2010
Same-sex marriage not recognised
Adoption Stepparent adoption since 2013, Joint adoption ordered by constitutional court

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 banned 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[edit]

Same-sex sexual acts have been legal since 1971. The age of consent was equalized in 2002 by a court decision.[1] LGBT people are not prohibited from military service.

Recognition of same-sex relationships[edit]

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.

It was planned that the Registered Partnership Bill 2008 (based on the Swiss model) would be introduced to the assembly in September 2008, however, as the current coalition of Social Democrats and Conservatives broke apart and early elections were scheduled for 28 September 2008, progress was delayed until December 2009.

In February 2009, Austria's Interior Minister Dr. Maria Fekter set up a working group, inviting delegations from all Austrian LGBT rights organizations to hold talks, including the Rechtskomitee Lambda (Lambda Legal Committee), RosaLila PantherInnen (pink and lavender panthers) and HOSI Linz, Salzburg, Tyrol and Vienna), on the issue of partnership recognition equality for same-sex couples. Dr. Maria Fekter announced that an Eingetragene Partnerschaft (registered partnership) bill would be introduced and enacted in Autumn 2009.[2] In November 2009, the government coalition agreed in Council to allow registered partnerships, which provide equal rights in labour, immigration, pension, tax, and civil law to same-sex couples as marriage does to opposite-sex couples. They also allow for someone to change their surname to match their partner's and take a common surname. On 10 December 2009, the National Council of Austria adopted the bill, with the votes of the representatives of the SPÖ and ÖVP,[3] and on 18 December 2009 it was approved by the Bundesrat. It was published in the Federal Law Gazette I No. 135/2009 on 30 December 2009, and came into force on 1 January 2010. Since then, same-sex couples can have registered partnerships, but do not have the right to full joint adoption of children. On 4 January 2010, the first four same-sex couples were registered in partnerships in Vienna.

A European Union poll in 2014 showed that 73% of Austrians[4] supported gay marriage.

Some have argued that heterosexual couples should also have access to registered partnerships as an analogous relationship recognition option, and that likewise, LGBT couples should have access to same-sex marriage.[5]

In January 2013, the Constitutional Court of Austria ruled that the registered partnership law was partially unconstitutional, broadening the rights for registered partnerships.[6]

The opposition party The Greens - The Green Alternative submitted a same-sex marriage bill to the National Council on 20 November 2013. It was sent to the Judiciary Committee on 17 December 2013.[7] The bill was supposed to be debated in Autumn 2014,[8] but was delayed by the ruling coalition.

Adoption and family planning[edit]

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.[9][10]

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.[11][12] 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.[13]

Additionally, lesbian couples can get access to artificial insemination.

Discrimination protections[edit]

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.[14][15][16]

LGBT rights and political debates[edit]

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 lead to the introduction of § 207b was introduced as a substitute by the coalition of the conservative ÖVP and the right wing FPÖ and 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. See Same-sex marriage in Austria. 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. [17] 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,[18] 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.[19]

Other, more conservative, political parties tend to oppose LGBT rights.

Additional controversies[edit]

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 [Out magazine February 2009, Pg. 46 – 51]. The controversy continued after Haider's death in an accident on October 11, 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.[20]

In addition, there has been an ongoing controversy regarding the disappearance of U.S. citizen Aeryn Gillern (born 1973) in Vienna,[21] on the evening of October 29, 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[edit]

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[edit]

Same-sex sexual activity legal Yes (Since 1971)
Equal age of consent Yes (Since 2002)
Anti-discrimination laws in employment Yes (Since 2004 in employment, other laws vary by region)
Anti-discrimination laws in the provision of goods and services No (only in state-run agencies in some regions)
Anti-discrimination laws in all other areas (incl. indirect discrimination, hate speech) Yes
Same-sex marriage(s) No (Pending)[22]
Recognition of same-sex couples Yes (Since 2003)
Step-child adoption by same-sex couples Yes (Since 2013)
Joint adoption by same-sex couples Yes (Ordered by Constitutional Court of Austria by December 31, 2015)
Gay men and women allowed to serve openly in the military Yes
Right to change legal gender Yes
Access to IVF for lesbians Yes (Since 2014)[23]
Commercial surrogacy for gay male couples No (Illegal for all couples regardless of sexual orientation)
MSMs allowed to donate blood No

See also[edit]


  1. ^ "RIS Dokument". Retrieved 4 November 2008. 
  2. ^ "Registered partnership on 1. January 2010". 18 February 2009. Retrieved 18 February 2009. 
  3. ^ TIMM:Österreichs Parlament beschließt Lebenspartnerschaft (german)
  4. ^
  5. ^ "Austrians seek right to partnerships created for gays" BBC News: 17.05.2010:
  6. ^ Österreich: Homo-Paare müssen "Ja" sagen dürfen
  7. ^ (German) Allgemeines bürgerliches Gesetzbuch, Änderung
  8. ^ (German) Abstimmung über Ehe-Öffnung ohne Klubzwang?
  9. ^ Österreich führt Stiefkindadoption ein – Kirche poltert
  10. ^ "Austria becomes the 13th European country to allow same-sex second-parent adoption". ILGA Europe. August 1, 2013. 
  11. ^ "Adoptionsverbot für homosexuelle Partner aufgehoben". Vienna Online. 14 January 2015. 
  12. ^ "Österreich: Adoptionsverbot für Homo-Paare verfassungswidrig". 14 January 2015. 
  13. ^ Homosexuelle dürfen künftig adoptieren – ohne Gesetzesnovelle
  14. ^ "RIS Dokument". Retrieved 4 November 2008. 
  15. ^ "RIS Dokument". Retrieved 4 November 2008. 
  16. ^ "RIS Dokument". Retrieved 4 November 2008. 
  17. ^ Malcolm Thornberry (16 December 2005). "Czech Republic, Austria Move To Legalize Gay Unions". Retrieved 14 August 2011. 
  18. ^ "Berger im STANDARD-Interview: "Bei Homosexuellen-Ehe etwas mehr zustande bringen" – Nachrichten in Echtzeit auf der Wahl – österreich...". Retrieved 4 November 2008. 
  19. ^ "Austria's parliament legalises civil unions". 10 December 2009. Retrieved 11 December 2009. 
  20. ^'gay_Haider'_reports
  21. ^
  22. ^ (German) Allgemeines bürgerliches Gesetzbuch, Änderung
  23. ^ Fortpflanzungsmedizingesetz im Ministerrat beschlossen

External links[edit]