Gay Rights In Austria: Is It Illegal?

Gay people in Austria have gained more rights and recognition in recent years, but what is the current legal situation and how did it come about?

Same-sex marriage has been legal in Austria since 2019

In 1770, under the Habsburg rule, various sexual acts, including sodomy, were criminalised and offenders faced harsh punishments such as decapitation and burning. Although there was inconsistent pursuit of same-sex acts, and pardons could be granted by Maria Theresa, it was not until 1787 that Joseph II introduced milder punishments and abolished the death penalty for homosexuality. However, it was replaced with forced labour, which included the brutal practice of ship pulling.

In the 19th and 20th centuries, Austria's criminal code underwent several amendments, with punishments for "impropriety against nature" increasing from imprisonment of one year to up to five years. It was only in 1971 that an amendment to the Penal Code decriminalised non-commercial same-sex sexual acts between adults. This amendment also introduced Section 209, which set the age of consent for gay male sex at 18, four years higher than the age of consent for lesbian and heterosexual relationships.

The fight for LGBTQ+ rights in Austria gained momentum in the 21st century, with registered partnerships being introduced in 2010, granting same-sex couples some of the rights of marriage. Stepchild adoption was legalised in 2013, and in 2016, the Constitutional Court of Austria took a significant step by legalising full joint adoption.

The turning point came on December 5, 2017, when the Austrian Constitutional Court ruled that the ban on same-sex marriage was unconstitutional, and this ruling went into effect on January 1, 2019. This decision brought Austria in line with several other European countries that had already legalised same-sex marriage. The new law also allowed heterosexual couples to enter into civil partnerships.

The legalisation of same-sex marriage in Austria sent a powerful message of inclusion and equality, and it is encouraging to see the country's progress in protecting the rights of its LGBTQ+ citizens.

Austria's LGBT+ rights have progressed significantly in the 21st century

Austria has made significant progress in LGBT+ rights in the 21st century, evolving from a history of criminalising same-sex acts to a generally progressive position.

In 1770, the Constitutio Criminalis Theresiana, the first unified criminal law for the Habsburg hereditary lands, criminalised sodomy and other sexual acts, imposing brutal punishments such as decapitation and burning. While same-sex acts were not consistently pursued, and pardons could be granted, the law set a precedent for harsh penalties. Over time, legal interpretations broadened the scope to include all immoral acts with a person of the same sex.

In the 19th and early 20th centuries, there were some efforts to reform these laws. In 1787, Joseph II abolished the death penalty for homosexuality, but it was replaced with forced labour. In 1803, a new criminal law was enacted, substituting imprisonment for forced labour. Amendments to the criminal code continued until 1852, when "impropriety against nature" remained punishable by imprisonment.

It was not until 1971 that an amendment to the Penal Code decriminalised non-commercial same-sex sexual acts between adults. However, this progress came with a caveat: the introduction of Section 209, which set the age of consent for gay male sex at 18, four years higher than for heterosexual and lesbian couples.

The 21st century has seen Austria take significant steps towards advancing LGBT+ rights and creating a culture of inclusion. In 2002, Parliament passed a law repealing Section 209, and in 2003, the European Court of Human Rights ruled that an unequal age of consent was incompatible with the Convention.

Registered partnerships for same-sex couples were introduced in 2010, granting them some of the rights of marriage. This was a pivotal step towards greater equality, and in 2013, Austria made further progress by legalising stepchild adoption for same-sex couples.

The momentum continued with full joint adoption legalised in 2016, and in 2017, a landmark decision by the Austrian Constitutional Court legalised same-sex marriage. This ruling took effect on 1 January 2019, marking a significant milestone in the fight for LGBT+ equality.

Austria has also strengthened anti-discrimination measures. Since 2004, the Equal Treatment Act has included protections based on sexual orientation in employment, and in 2015, amendments to the Criminal Code made hate crimes and hate speech based on sexual orientation an aggravating factor in sentencing.

The country now officially recognises non-binary as a gender, and transgender individuals can legally change their names and gender to match their gender identity. Additionally, lesbian couples have access to artificial insemination and IVF treatments.

While Austria's LGBT+ rights journey has been commendable, there is still room for improvement. The country's LGBT+ community continues to face challenges and biases in various aspects of life, including employment and education. Nonetheless, the overall trajectory is positive, and Austria is now considered a welcoming and inclusive nation for LGBT+ individuals and their allies.

Discrimination against the LGBT+ community is illegal

In 2015, the Austrian Parliament approved amendments to the Criminal Code, making it an aggravating sentence to commit a crime on account of the victim's sexual orientation and banning hate speech on the basis of sexual orientation. These changes went into effect on 1 January 2016.

In addition to federal-level protections, all Austrian states (Bundesland) have established anti-discrimination laws covering sexual orientation in the provision of goods and services. The last state to do so was Lower Austria, in January 2017.

Despite these legal protections, a study on sexual orientation and labour market outcomes found that there is still bias within the Austrian job market. The study found that those identifying as gay or lesbian sometimes face discrimination in the initial stages of hiring when compared to heterosexual applicants.

Austria's LGBT+ community has the right to adoption and fertility treatments

Austria has made significant progress in advancing the rights of its LGBT+ community in the 21st century and is now considered generally progressive. In a 2016 ECRI Report, 6.2% of Austrians identified as LGBT+, and social acceptance is considered high.

Adoption Rights

In 2013, the European Court of Human Rights ruled in favour of stepchild adoption for same-sex partnerships, and the Austrian Parliament passed a government bill legalising the process. This was followed by the legalisation of full joint adoption by same-sex couples in 2015. In 2018, the Austrian Constitutional Court ruled that same-sex couples must be treated the same as heterosexual couples in adoption cases, with the best interests of the children being paramount.

Fertility Treatment Rights

Lesbian couples in Austria have access to both artificial insemination and IVF treatments.

Marriage Rights

Same-sex marriage was introduced in Austria in 2019, bringing the country in line with 15 other European nations. This progressive legislation also allowed heterosexual couples to enter civil partnerships.

Discrimination Protections

Austria implemented comprehensive anti-discrimination measures in 2004, and in 2016, parliamentary amendments made hate speech and crimes against victims based on their sexual orientation an aggravated sentence. The Equal Treatment Act includes anti-discrimination protections based on sexual orientation in employment since 2004, and all citizens are protected equally under the Federal Constitution.

Gender Identity Rights

Transgender individuals are allowed to change their legal name and gender to match their gender identity, and intersex people can choose to leave their gender entry blank or select "inter", "other", or "X" on official documents. In 2018, the Austrian Constitutional Court stated that being intersex is not a disorder, and medically unnecessary treatments or surgeries on intersex minors should be postponed until the child can provide informed consent.

Austria's LGBT+ community faces discrimination in employment

While Austria has made significant progress in advancing LGBTQ+ rights in the 21st century, and is now considered generally progressive, there are still some challenges faced by the community, particularly when it comes to employment.

Legal Protections and Ongoing Discrimination

Austria implemented comprehensive anti-discrimination measures in 2004, which included protections for LGBTQ+ individuals in employment. Article 17(1) of the Law on Equal Treatment (2004) prohibits discrimination in employment on the basis of sexual orientation at the federal level. However, it is important to note that these protections do not explicitly cover gender identity. While Austria's Federal Constitution protects all citizens equally and prohibits discrimination, it does not explicitly include sexual orientation.

Despite these legal protections, a study on sexual orientation and labour market outcomes found that bias against LGBTQ+ individuals in the job market persists. The study revealed that gay and lesbian individuals sometimes face discrimination during the hiring process when competing with heterosexual applicants. This issue is not unique to Austria, as similar findings have been observed in other countries with anti-discrimination laws, including Cyprus, Greece, Sweden, the US, the UK, and Canada.

Societal Attitudes and Public Opinion

Public opinion in Austria towards LGBTQ+ issues appears to be somewhat divided. While social acceptance is considered high, and Austria has hosted successful events like the EuroPride festival, there is still work to be done to achieve full inclusion. In a 2023 Gallup survey, Austria was ranked 26th out of 124 regions when respondents were asked if their city or area was a good place to live for gay and lesbian people. Additionally, in a 2023 FRA-EU Agency for Fundamental Rights survey, Austria was ranked 1st out of 30 regions when respondents were asked if they had hidden their LGBTQ+ identity at work in the last 5 years. These rankings indicate that while Austria has made progress, there is still a perception of discrimination and a need for individuals to conceal their LGBTQ+ identity in professional settings.

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