Austria < Homopoliticus

The Greenwood Encyclopedia of LGBT issues worldwide

Austria

Für die von Chuck Stewart herausgegebene dreibändige Greenwood Encyclopedia of LGBT Issues Worldwide verfasste ich das Kapitel über Österreich. Verlag: Greenwood Press/ABC-CLIO, Santa Barbara (Kalifornien) 2010.

Overview

Austria is situated in central Europe. It comprises a total area of 32,000 square miles. It borders Germany and the Czech Republic to the north, Slovakia and Hungary to the east, Slovenia and Italy to the south, and Switzerland and Liechtenstein to the west. It is landlocked, without access to the sea. The capital city is Vienna.

It is a republic composed of nine federal states. It is one of six European countries that have declared neutrality. It has been a member of the European Union (EU) since 1995.

Austria has a population of just above eight million, of which a quarter live in Vienna (more than 1.6 million, 2.2 million with suburbs). The capital is the only city with a population of more than one million. The second largest city, Graz, has 250,000 inhabitants, followed by Linz (190,000), Salzburg (150,000), and Innsbruck (117,000).

German-speaking Austrians are by far the country’s largest group (roughly 90%). There are autochthonous minorities (Slovenes and Croatians). Austria also has a large immigrant population. Around 12% of today’s population were not born in the country. There are more than 700,000 foreign nationals living in Austria.

Overview of LGBT Issues

In the European spectrum of countries, Austria’s position in terms of the social and political status of LGBT individuals somewhat reflects the country’s geographic position in the heart of the continent: Austria is certainly not as advanced as the Nordic countries, England, Spain or even neighboring Switzerland, but it is neither as conservative as some of the countries in eastern Europe or in the Balkans.

There are a few important historic features that explain why Austria, in comparison with many similar countries, has made less progress in the field of LGBT emancipation and equality. One of them is the fact that Austria’s democratic tradition in general is relatively short; it did not really have any liberal revolution deserving this label in the 19th century, and it is a predominantly Catholic country where the Roman Catholic Church continues to have a very strong influence on both politics and society.

Moreover, the Nazis’ short but intense antihomosexual brainwash during the years of the Anschluss of Austria to the German (Third) Reich from 1938 to 1945 also left its traces in the minds of people, even long after the end of Nazi rule. This is also reflected by the fact that the Federal Nazi Victims Compensation Act (Opferfürsorgegesetz) was only amended in 2005 to include those Nazi victims persecuted and sent to concentration camps on the grounds of their sexual orientation. It took the LGBT movement more than 20 years of lobbying to achieve this. Until then, the law restricted compensation to persons persecuted on political, religious, or racial grounds, while homosexual victims were considered common criminals, as homosexuality was forbidden both before and after the Anschluss. Therefore, homosexual victims were denied official recognition and, consequently, any legal entitlement to compensation. The amendment in 2005, however, came only at a time when no known Pink Triangle concentration camp survivor was still alive who could make use of the new legislation.

Another important feature of the general LGBT situation is that Austria – between the end of World War II and today – only had a very short period of 13 years (1971–1983) with a left/progressive majority in parliament. Most of the time since 1945, Austria has been governed by a grand coalition between the Socialist (later Social Democratic) Party (SPÖ) and the conservative People’s Party (ÖVP). Even when the SPÖ was the stronger and leading coalition partner, the ÖVP could and, indeed, did block any pro-LGBT legal reform with reference to the party’s Christian basis and ideology.

However, over the last 30 years, tremendous change has been observed, both in the attitudes of society in general and the media in particular. The change in public opinion is obviously more significant than the change at the political level. While homosexuality was a complete taboo up to the 1980s, and was only mentioned in the media in the context of crime – homosexuals had been considered as criminals who were topped only by murderers on the hit list of abominable outcasts of society – this has completely changed. Today, the topic of homosexuality is covered and mainstreamed in all its many aspects and facets by the mass media. Gays and lesbians are represented in a positive, supportive, or at least neutral and objective way. Hostile media coverage has become an exception.

The change in society’s attitudes has coincided with the emergence and growth of a lesbian and gay liberation and emancipation movement and, of course, has been an international phenomenon.

Education

Austria has a free and public school system, and nine years of education are mandatory. Schools offer a series of vocational-technical and university preparatory tracks involving one to four additional years of education beyond the minimum mandatory level. Private schools providing primary and secondary education are run mainly, but not exclusively, by the Roman Catholic Church, and account for approximately 10% of the 6,800 schools and 120,000 teachers.

There is no tradition of private university education in Austria. Therefore, the state has a quasi monopoly on higher education. This has only been changing slowly in recent years with the establishment of a few private universities.

The positive or at least neutral portrayal of LGBT people and issues in the mass media has actually been the main source of unbiased information for the population at large. In schools, although sexual education is part of the curriculum, homosexuality is not addressed in a systematic and standardized format. In most cases, the topic is ignored by teachers, or at best just taken up in a very superficial way.

Employment and Economics

Austria is one of the 10 richest countries in the world in terms of gross domestic product (GDP) per capita, and has a well-developed social market economy, as well as a very high standard of living. It is a welfare state based on the Scandinavian model. In 2008, the unemployment rate was 4%, which, according to the definition of the European Union, is equivalent to full employment.

Social/Government Programs

There are no government-funded social programs targeted specifically at LGBT people, but many LGBT initiatives and projects have received subsidies by both federal, state, and local governments during the last 25 years.

Family

Traditional family patterns continue to be promoted, although today’s reality already paints a quite different picture, illustrated by the following features:

The divorce rate is 40 percent, meaning that 40 out of 100 marriages are dissolved sooner or later;
The absolute number of marriages is in decline. While 50,000 couples got married in 1950, only 40,000 couples tied the knot 50 years later, in 2000;
A third of all children in Austria are born out of wedlock;
A quarter of all families are single parent families.

Community

The first informal gay groups appeared in Austria in the mid-1970s. At that time, lesbians were more likely to be involved in the feminist women’s movement. The first gay organization, Homosexuelle Initiative (HOSI) Wien, was founded in 1979, at a time when Article 221 of the criminal code (see below) still prohibited the founding of and membership in an association facilitating or promoting homosexuality. In talks between the proponents of the new organization and the competent ministries, it was agreed that Article 221 is open to a different interpretations: Such an organization would only be illegal if it caused public offense. That is why HOSI Wien was able to register as the first gay association in January 1980. Today, it is still Austria’s largest and leading gay and lesbian organization.

After this precedent, independent regional gay organizations were founded in other cities such as Salzburg, Linz, Graz, and Innsbruck. Soon, the LGBT movement started to diversify. Many informal groups and associations popped up, dealing with specific interests and issues, such as religion and belief, leisure activities and so on. They also organized around party politics (there are LGBT caucuses within both the Green Party and the SPÖ), cultural activities (film festivals, etc.) and professional interests (for example, gays and lesbians in the medical professions or, most recently, in the police force).

There has also been a growing LGBT community both in Vienna and in other major cities, which provides all kinds of services, including free counseling for young lesbians and gays or those who have coming-out problems. More and more commercial businesses serving the LGBT community have sprung up.

Several highlights in the annual calendar of events have been established, attracting more and more participants, including both LGBT people and their heterosexual friends and supporters. The biggest of these events is the annual Rainbow Parade organized by HOSI Wien. This pride parade, along the spectacular scenery of the world famous Ringstrasse in Vienna, attracts more than 100,000 people marching and watching – which is a huge crowd in a city of 1.6 million inhabitants.

Other events of that kind include the Life Ball, the largest HIV/AIDS charity event in Europe, which takes place in Vienna City Hall every May. Although presented as a mainstream event, it is very much linked to the LGBT community.

Health

Paradoxically, the development regarding the more positive portrayal of homosexuality by the mass media started with the emergence of the AIDS crisis in the mid-1980s. In the context of this disease, the media began to shed light on gay lifestyles and, for the first time, the public was confronted with the fact that homosexuality and homosexuals do exist in society, and not only on its edges.

The AIDS crisis in the 1980s was also the first big probation test for the young LGBT movement that, indeed, passed this test with great bravura. HOSI Wien used the crisis to establish itself as an important player in the fight against AIDS and, together with physicians and other experts, co-founded Austria’s first AIDS service organization, offering free and anonymous HIV testing and counseling, as well as doing large-scale prevention campaigns. This turned out to be a great success story. In this context, homosexuality was finally and officially deleted as a diagnosis in Austria’s version of the international classification of diseases in 1991.

Politics and Law

The lack of a democratic tradition, the domination of the Catholic Church, and the oppression of the Nazi years all account for why Austria has had an especially long history of criminalizing and oppressing lesbians and gay men. In 1971, Austria was one of the last countries in Europe to repeal the total ban on homosexuality that also included female homosexuality. The price of this reform, however, that had to be paid to the conservative forces in society and to the powerful Catholic Church, was the introduction of four antihomosexual law provisions into the penal code in 1971:

Article 210 (prohibition of male same-sex prostitution): this provision was abolished in 1989 in order to allow the health control of male-to-male prostitutes as part of HIV/AIDS prevention;
Articles 220 and 221 (ban on positive information about homosexuality and on gay and lesbian associations): their repeal was voted by Parliament in November 1996 and came into force on 1 March 1997; and
Article 209, which stipulated a higher age of consent for male-to-male relations (18 years) compared to heterosexual and lesbian relations (14 years) in case one of the partners was of age (18 years; this age of liability for breaches of Article 209 was raised to 19 years in 1988; thus, sexual relations between young men were not punishable if both partners were between the ages of 14 and 19).

Contrary to Articles 220 and 221, which were hardly ever applied in all the years of their existence and were considered dead law, Article 209 had been enforced consistently until its abolition in 2002. Again, Austria was one of the last countries in Europe to equalize the age of consent for heterosexual and homosexual acts.

Antidiscrimination legislation

Austria also has a very poor record of legal provisions protecting LGBT people from discrimination. It was only in 2004 that anti-discrimination legislation was adopted to ban discrimination based on sexual orientation in the workplace. However, this was something that the Austrian government – at that time the infamous coalition between the ÖVP and Jörg Haider’s right-wing Freedom Party (FPÖ) and later its split-off, the Alliance for the Future of Austria (Bündnis Zukunft Österreich, BZÖ) – was eager to do of its own initiative. The Austrian government and parliament were basically forced to do so, as they had to implement a European Union directive.1 And although pressured by many civil society organizations to introduce comprehensive anti-discrimination legislation on that occasion, they chose to transpose only the minimum provisions as prescribed by the EU. Thus, LGBT people still wait for efficient and effective legal protection from discrimination in all other areas, such as in access to goods and services.

Partnership legislation

There is still no same-sex marriage or registered partnership legislation in Austria. However, same-sex couples have the same legal rights as unmarried opposite-sex couples (common-law couples) who, in fact, do already enjoy a wide range of legal rights (and duties), although not exactly the same ones as spouses.

The equal treatment in law of same-sex and different-sex domestic partners is owing to a landmark judgment of the European Court of Human Rights (ECtHR) in Strasbourg delivered in July 2003. The case – Karner versus Austria – which was supported by HOSI Wien, concerned a gay man who was evicted from the apartment of his deceased partner because, due to the jurisprudence of Austria’s supreme court, he was not entitled to take over the lease contract from his deceased partner. While the wording of the Austrian Rent Act is neutral and does not distinguish between same-sex and opposite-sex unmarried domestic partners, the Austrian court had argued that the neutral language was for linguistic, but not legal, reasons. The ECtHR, however, ruled that this decision was a violation of the European Human Rights Convention.2 It also argued that a government must have convincing and weighty reasons to justify a different legal treatment of same-sex and opposite-sex domestic partners. There is hardly any legal area where such weighty reasons could be put forward to exclude same-sex couples from certain rights granted to opposite-sex non-married couples.

Since this decision, Austrian courts, therefore, must interpret all laws stipulating rights for domestic partners to cover same-sex partners. And the few laws that explicitly restricted their application to different-sex domestic partners were later ordered to be amended by the Federal Constitutional Court, which indeed, had to change also its own jurisprudence in light of the ECtHR’s judgment in Karner versus Austria.

In the absence of any registered partnership or marriage legislation for same-sex couples, they have still no access to a lot of rights reserved for spouses. Although many of these legal provisions do not play a significant role in the daily life of most couples, some of these rights are quite important and are highlighted here:

Inheritance law discriminates against same-sex partners because, if no last will is made, the surviving partner has no right to inherit, as domestic partners, unlike spouses, do not have a legal right of succession;
The immigration laws only allow privileged treatment for spouses of Austrian citizens or of aliens with legal permission to stay in Austria. Citizens, especially from non-EU countries, have practically no chance at the moment to obtain permission to legally stay and work in Austria by virtue of their same-sex relationship with an Austrian national;
Widow(er) pension under the state pension schemes, which is the most common basis for retirement pensions in Austria, is restricted to spouses. In the absence of same-sex marriage or registered partnership, same-sex partners have no legal entitlement to a widow(er) pension;
There is also discrimination against same-sex partners in income tax provisions.

Adoption and artificial insemination

Same-sex partners cannot jointly adopt a child. In theory, a lesbian or a gay man could adopt a child as an individual; in practice, however, the few adoptable children in Austria would be given to couples only – there is a long waiting list of couples wanting to adopt. International adoption by single (homosexual) persons is an alternative, and there has recently been such a case: A man who is living in a same-sex relationship has adopted a black girl from the United States who is growing up with the couple. However, the partner of the adoptive father has no legal relationship to the child. It is also impossible to co-adopt the biological child of one’s same-sex partner.

However, in some parts of Austria, children are placed with same-sex couples as foster parents. The city of Vienna, indeed, has run publicity campaigns geared at same-sex couples to enlist them as foster parents.

In some cases, divorcing partners would use the fact that the ex-wife or ex-husband is homosexual as a weapon in the fight for exclusive custody/parenting rights over the couple’s children. This has also been used to restrict the right of the divorced partner to visit and see the children on a regular basis or even to completely deny him or her this right.

The 1992 Reproductive Medicine Act explicitly excludes lesbians (and all single women) from the benefit of artificial insemination or in-vitro fertilization methods. These are restricted to married women or women in a long-term, heterosexual partnership.

Asylum law

Austria has been one of the first countries to recognize gays and lesbians as potentially belonging to a distinct social group that, in case of persecution, would fall under one of the five asylum grounds listed in the Geneva Refugee Convention. In the explanatory notes to the 1991 Asylum Act, the legislator clearly stated that persecution based on sexual orientation could constitute a reason to flee, and thus a reason to be granted political asylum in Austria. Meanwhile, this interpretation of the Geneva Convention has become standard throughout the European Union due to a recent EU directive.3

There have been no (known) cases so far in which asylum was granted to gays and lesbians solely on the grounds of persecution because of their sexuality. However, at least six gay men (five Iranians and one Romanian) were granted refugee status in the past (the first – Iranian – case dating back to 1984). None of the reasons given in all decisions mentioned persecution because of homosexuality, but this was the only additional reason put forward by those men in their appeals after their initial applications for asylum on other grounds had been rejected.

Religion and Spirituality

Austria is a predominantly Catholic country. About 74 percent of the population is registered as Roman Catholics, while about 5 percent are Protestants. Both of these groups have been in decline for decades. About 12 percent of the population declares that they have no religion. Of the remaining people, about 180,000 are members of Eastern Orthodox churches and more than 8,000 are Jewish. The influx of people, especially from the former Yugoslav nations, Albania and particularly from Turkey, have largely contributed to a substantial Muslim minority in Austria. The Muslim community is increasing, comprising today around 340,000 people. It will soon outnumber Protestants. Buddhism, which was legally recognized as a religion in 1983, counts around 20,000 followers.6

The Roman Catholic Church has a long tradition of interfering in politics and society. Its bishops and its diverse institutions would publish hostile and negative statements on a regular basis regarding all relevant issues of LGBT equality, such as registered partnership.

Violence

There is no protection whatsoever against hate speech or incitement to hatred on the grounds of sexual orientation or gender identity. There are no legal provisions establishing aggravated circumstances in the case of crimes or violence motivated by homophobia or transphobia.

However, homophobic and transphobic hate speech and violence is no urgent or burning problem in Austria. Most of homophobic hate speech originates from reactionary representatives of the Roman Catholic Church or right-wing parties, but is hardly echoed in the media. In most cases, these statements are not taken seriously, and are usually ignored or ridiculed even by the mainstream media.

Of course, incidents of homophobic or transphobic violence do occur, but these seem to be single events. In addition, homophobic bullying certainly exists in school, but does not seem to be such a widespread phenomenon as it is in other countries.

Underreporting of cases of homophobic violence or ordinary crimes is certainly a problem, as victims, who are not out as gay or lesbian may prefer not to report the crime to the police in order to avoid mentioning this. Such persons, of course, are especially vulnerable victims, and perpetrators may even consider their victims’ reluctance to report to the police when choosing them as targets.

Normally, LGBT victims do not need to fear being badly treated or victimized by the police when reporting a crime. In 1993, the current Police Security Act (Sicherheitspolizeigesetz) was adopted. This regulates the competence of the police force and their lawful ways of acting. A decree issued in this context by the Minister of the Interior provides guidelines and instructions for police interventions, and the nondiscriminatory behavior prescribed by the decree also covers sexual orientation. It reads as follows: “In performing their tasks, members of the police forces must refrain from doing anything that could create the impression of bias or could be perceived as discrimination on the grounds of sex, race or color, national or ethnic origin, religious belief, political conviction or sexual orientation.“ Moreover, LGBT organizations will also support crime victims when dealing with the police.

Outlook for 21st Century

The improvements and progress made over the last 30 years are rooted in society’s political awakening in the 1970s, once Bruno Kreisky had taken over the government in 1970 and led socialist governments until 1983. As one of his first landmark reforms, the total ban on male and female homosexuality was repealed in 1971.

This awakening caught hold of all walks of life and aired a society that had completely fossilized in the rigidity of traditions and conventions. This development was accompanied by the rejection, to a certain degree, of the suffocating influence of the Catholic Church and its political arm, the conservative Christian Democratic Party, ÖVP.

Another important political element not to be underestimated was the appearance on the political scene of the Green Party. Voted into the national parliament for the first time in 1986, the Green Party has supported and pushed for LGBT rights ever since, keeping these issues unrelentingly on the political agenda.

However, when the ÖVP returned into government (as the junior partner in a coalition with the Social Democratic Party) in 1986, it started to try everything to slow down and completely stop this positive development.

Thus, the ÖVP has been vetoing and blocking any improvement for gays and lesbians in the past 20 years. It has been the clear ideological program of this party to make gays and lesbians second-class citizens and do everything to prevent them from obtaining full equal rights. The repeal in 1996 of the two penal code provisions, articles 220 and 221, was only possible because the SPÖ/ÖVP coalition government had finally agreed on a free vote in parliament; members of parliament (MPs) from the Freedom Party voted in favor of repealing article 221 (ban on gay and lesbian associations), and two of them missed the vote on article 220 (ban on positive information about homosexuality). While the Freedom Party only voted against the repeal of Article 220, the ÖVP voted against the repeal of both provisions.

It is one of the great paradoxes of history that all significant progay reforms have happened during the coalition government between the conservative ÖVP and Jörg Haider’s right-wing party at the beginning of the 21st century. In all these cases, the reforms have occurred due to European pressure and against the determination of the ÖVP:

In the case of the repeal of article 209, ÖVP Federal Chancellor Wolfgang Schüssel had defended, in a newspaper interview,4 the discriminatory age of consent for male homosexuality as late as two weeks before the Federal Constitutional Court declared this provision to be unconstitutional in June 2002. And again, the constitutional court had to correct its own jurisprudence because in several applications in the 1980s and 1990s, it did not consider Article 209 as unconstitutional. But in 1997, the European Human Rights Commission of the Council of Europe in Strasbourg finally found in Sutherland versus the United Kingdom5 that the British higher age of consent provision was in breach of the European Human Rights Convention. In June 2002, several Austrian applications were pending before the Strasbourg Court, and it was clear that the ECtHR would rule in favor of the applicants. The Austrian constitutional court obviously did not want to risk being overruled by the Strasbourg court. Thus, it deviated from its previous rulings in article 209 applications and declared the provision to be unconstitutional. And indeed, in January 2003, the Strasbourg court condemned Austria for violating the convention in three article 209 cases.6

Granting equal rights to same-sex unmarried partners occurred due to a judgment of the Strasbourg court in July 2003, which was again a slap in the face for the conservative People’s Party, which had always defended the different legal treatment of same-sex and opposite-sex domestic partners.

Furthermore, protection from discrimination in the workplace as stipulated in the 2004 Federal Equality Act was imposed on the Austrian government by the European Union. So it can be concluded that all recent progress and positive developments for LGBT people in Austria were achieved through the pressure from European institutions and against the declared will of the conservative government in Austria.

After its landslide defeat in the 2006 general elections – Wolfgang Schüssel lost the chancellery to the Social Democrats – the ÖVP was trying to find out the causes for their unexpected downfall as, for example, the economic situation was very good at that time. One conclusion that the ÖVP drew, along with many commentators, was that the ÖVP had simply taken a much too conservative course, especially in matters of societal relevance. In the pursuit to become the biggest political party again, a huge internal debate about new political perspectives began within the ÖVP. After a lengthy process, in October 2007, the party came up with some new ideas for a future program, including the proposal to introduce registered partnership for same-sex couples based on the Swiss model. At the same time, however, the ÖVP continued to insist that marriage was a distinct institution for opposite-sex couples and would not be touched. The Swiss registered partnership legislation basically grants the same rights and obligations to same-sex couples as marriage grants to spouses – only adoption and services of reproductive health are excluded. The Swiss legislation, thus, is comparable with the legislation in the five Nordic countries and the United Kingdom. In Europe, only the Netherlands, Belgium and Spain have gone further in opening up civil marriage for same-sex couples.

It is unclear and, indeed, still doubtful whether this project will become reality. While in April 2008, the federal minister of justice (SPÖ) presented a bill to introduce registered partnership, certain powerful fractions within the ÖVP are still trying to derail the project or water it down to the extent that the LGBT movement would finally say “No, thanks. If we can only get that little, we prefer to wait and continue to fight for more.” In any case, partnership legislation is the last legal challenge of the LGBT movement in the country. The decision to pursue same-sex registered partnership based on the Swiss model was the first time the conservative ÖVP came up with a proactive proposal to improve the situation of LGBT people.

It is generally fair to say that in Austria, LGBT people have finally arrived from the edges to the center of society, although exclusion and discrimination still exist. And of course, there are the usual differences between bigger cities and smaller towns and rural areas, such as differences in terms of exposure to negative reactions in certain professions; these differences certainly make it difficult to generalize. However, on a general note, it can be stated that today, there is a climate in Austria that would allow every gay man and every lesbian woman to come out, provided she or he is equipped with some courage and the will to cope with some possible negative reactions. Young gays and lesbians should have fewer and fewer problems when coming out.

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