Annual Review 2011
Bias motivated speech
In October, the Austrian Parliament passed a law amending the existing ban on incitement to hatred in the Criminal Code (Article 283) to include incidents based on sexual orientation and certain other grounds which were previously not included.
Equality and non-discrimination
In 2011, Austria accepted a recommendation during the UN Universal Periodic Review process to include sexual orientation and gender identity perspective with regard to measures against incitement to hatred. It also agreed to harmonise all anti-discrimination laws to ensure equal protection on all grounds of discrimination, including sexual orientation and gender identity. During the UPR process, Austria also accepted a recommendation to treat same-sex relationships equally with opposite sex relationships, including the entitlement to equal consideration for adoption and access to medically assisted reproduction. However, Austria rejected a recommendation to amend the legal status of same-sex partnerships to enable the right to adopt and have children.
- At the beginning of the year, the Administrative Supreme Court of Austria took a decision against the outing of trans individuals through their marriage certificates. The Minister of Interior had changed the marriage certificates in 2010 to remove reference to gender but insisted that the names of the spouses be listed in a particular order, with the ‘former man’ first and the ‘former woman’ second, thereby ensuring that without mentioning gender the trans identity of a spouse was still revealed. Since couples of the same sex are not able to marry in Austria, a marriage of two people of the same sex must involve at least one trans partner. The Administrative Supreme Court decision, if followed by the government, should ensure that the marriage certifi cates no longer lead to the forced exposure of the gender identity of married same- ex partners. In November, notwithstanding that there had been no change in position by the Minister of Interior, the City of Vienna issued a marriage certifi cate which did not follow the order prescribed by the Ministry thereby removing the possibility of identifying the trans spouse through the marriage certifi cate.
- In November, the Constitutional Court corrected the interpretation of the Ministry of Interior which had ordered that a double-barrelled surname of a partner created after entering into a same-sex registered partnership must be written without a hyphen between the two surnames. Using a hyphenated double barrelled name for one of the partners is provided for in the legislation relating to marriage but not registered partnerships. As a result, the partner of a registered couple who chose to use a double surname was not allowed to hyphenate the surnames when entering a registered partnership. The Court found this to be discriminatory and held that same-sex couples are entitled to protection of their family life and that any disadvantageous treatment in comparison to married couples must be based on substantively serious grounds, a desire to diff erentiate is not such a ground.
- In December, the European Court of Human Rights held the first hearing in the case of X and others v Austria (Application no. 19010/07). The case concerns the refusal by an Austrian court to grant one of the women in a same-sex couple the right to adopt the son of her partner without severing the mother’s legal ties with the child.
Sexual and reproductive rights
The Austrian law granting same-sex couples the right to enter into registered partnership explicitly bans lesbians from receiving fertility treatment. However, in May the Supreme Court asked the Constitutional Court to overturn the ban. A number of lesbian couples had also petitioned the Court to allow them to access this medical service, and a number of cases challenging the constitutionality of the ban were pending at the end of 2011.
Social security and social protection
In March, the Constitutional Court refused to hear the case of a highly ranked policeman who was made redundant for being gay in 1976. The man had not been able to acquire a similar position since his dismissal, and his pension is signifi cantly reduced.