Laws

AUSTRIA

Limited information only available for these topics

Access to Children
Adoption of Children
Age of Consent
Anti-Vilification
Artifical Insemination
Assisted Reproduction
Asylum / Refugees
  Civil Unions
Custody of Children
Discrimination
Fostering Children
Gender Identity
Harassment
Hate Crimes
  HIV/Aids
Homosexuality
Immigration
Inheritance
In Vitro Fertilisation (IVF)
Marriage
Military
  Partners
Parenting
Property
Sodomy
Transgender, Transsexual
Violence
Wrongful Death

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Age of Consent Legislation/Cases/References
1.

National

On 13 August 2002, consensual sex between same-sex couples became lawful at age 14 years [R1.4].

On 10 July 2002, following the Constitutional Court's judgment (see Courts & Tribunals), the Austrian Parliament decided to repeal Article 209.

It also introduced Article 207b, which penalises sexual acts with a person under 16 years of age if that person is for certain reasons not mature enough to understand the meaning of the act and the offender takes advantage of this immaturity or if the person under 16 is in a predicament and the offender takes advantage of that situation.

Article 207b also penalises inducing persons under 18 years of age to engage in sexual activities in return for payment.

Article 207b applies irrespective of whether the sexual acts at issue are heterosexual, homosexual or lesbian.

The above amendment, published in the Official Gazette (Bundesgesetzblatt) no. 134/2002, came into force on 14 August 2002 [R1.3].

Previously:

Article 209 provided that sex between two males is lawful provided both are at least 18 years of age. The age of consent for consensual lesbian sex is 14.

It was lawful between opposite sex persons at age 14 [R1.2].

In July 1998, the Austrian Parliament's conservative majority (Christian Democrats and far right-wing Freedom Party) voted down an amendment to a penal code reform bill providing for the repeal of Article 209, the discriminatory age of consent law (18 for gay men contrary to 14 for heterosexuals and lesbians) [R1.1].

2.

Courts & Tribunals

On 07 November 2013, the European Court of Human Rights ruled that Austria discriminated against four gay men when it refused to delete from their criminal record convictions under its discriminatory age of consent law, setting 18 as the age of consent for sexual relations between men, compared to 14 for heterosexual relations, repealed in 2002 [C1.6], [R1.5].

On 21 June 2002, upon a request for constitutional review made by the Innsbruck Regional Court, the Constitutional Court gave judgement, finding that Article 209 of the Criminal Code was unconstitutional [R1.4].

The Constitutional Court held that Article 209 concerned only consensual homosexual relations between men aged over 19 and adolescents between 14 and 18.

In the 14 to 19 age bracket homosexual acts between persons of the same age (for instance two 16-year-olds) or of persons with a one- to five-year age difference were not punishable. However, as soon as one partner reached the age of 19, such acts constituted an offence under Article 209 of the Criminal Code. They became legal again when the younger partner reached the age of 18

Given that Article 209 did not only apply to occasional relations but also covered ongoing relationships, it led to rather absurd results, namely a change of periods during which the homosexual relationship of two partners was first legal, then punishable and then legal again and could therefore not be considered to be objectively justified.

C1.6 Judgment: Case of E.B. and Others v. Austria PDF 331.87kb, 07 NOV 13
R1.5 ILGA-Europe: 08 NOV 13
R1.4 IGLHRC: Homosexual and Heterosexual Relations Are Equalized 13 AUG 02
R1.3 European Court of Human Rights: HG v. Austria Application no. 38357/07
R1.2 The International Gay and Lesbian Human Rights Commission (IGLHRC): Austrian Anti-Gay Laws Repealed JAN 97
R1.1 Kurt Krickler: Austrian Reforms 19 JUL 98
Assisted Reproduction Technology
Artificial Insemination, In Vitro Fertilisation, Surrogacy
Legislation/Cases/References
1.

National

The law prevents gay couples from using IVF and artificial insemination [R1.1].

R1.1 PinkNews.co.uk: Austria's parliament legalises civil unions 10 DEC 09
PinkNews.co.uk: Austria allows civil partnerships but gay adoption ban stays 18 NOV 09
Asylum, Immigration, Refugees Legislation/Cases/References
1.

National

On 01 January 2010, with the coming into effect of the Eingetragene Partnerschaft (registered partnership) law, same-sex registered partners gained equal rights in labour, immigration, pension, tax, and civil law as married opposite-sex couples [R1.3].

Previously:

In June 2008, in a directive to the City of Vienna, the Ministry of Interior, said that a "next of kin" residence permit will only be granted if the Austrian partner and his or her foreign partner lived in a joint household in the country of origin of their partner [R1.2].

The effect of this is said to be, that a joint life can be realised in Austria only in those cases where an Austrian emigrates, for a long time lives with a foreign partner in the country of emigration and then brings his partner when returning to Austria [R1.2].


In August 1996, "Sexual orientation" was reportedly a ground for granting political asylum in Austria [R1.1].

R1.3 [Citation required]
R1.2 PinkNews.co.uk: Austrian Gays Claim "Act of Aggression" Over Residence Permits 24 JUN 08
R1.1 Melbourne Star Observer: Change Slow But Sure 02 AUG 96
Civil Unions, Partners: Domestic, Registered Legislation/Cases/References
See also: [INHERITANCE] [MARRIAGE] [PROPERTY]
1.

National

On 04 October 2016, it was reported that the status of same-sex unions would be upgraded in a draft law under which partnerships would be registered at the district clerk's office as are marriages and couples could list their common names as ''family names'' instead of ''last names''. Homosexual unions are currently registered by the district administration department, which oversees local and municipal statutes [R1.5].

On 10 December 2009, parliament approved 110–64 legalising civil unions in the country [R1.4] with effect from for 01 January 2010.

In November 2009, the government agreed to legalise civil partnerships for gay couples with the law coming into force on 01 January 2010, if it is approved by parliament [R1.3].

In December 2005, Austria's Justice Minister announced that he is considering legislation to grant limited recognition of same-sex couples. [R1.2].

In 2003, the law or a court verdict had the effect of offering same-sex partners a few or some rights of marriage, without a registry [R1.1]

2.

Courts & Tribunals

On 11 November 2011, the Constitutional Court issued a decision concerning naming. It seems that under the law when different-sex couples marry and decide to keep their original surnames, the names must be connected by a hyphen, but the Interior Ministry was taking the position that same-sex partners forming civil unions may not use the hyphen. The Court disagreed, stating that same-sex couples enjoy the constitutional protection of the family, and that differential treatment by the state required serious reasons for justification [R2.2].

On 11 November 2011, the Constitutional Court refused a petition to open up the status of registered partnership to different-sex couples, finding that since heterosexuals were not a historically disadvantaged group, their exclusion from registered partnership would not exceed the legislature's "margin of appreciation" with regard to constitutional equality requirements [R2.2].

R1.5 FoxNews: Austria upgrades same-sex unions, but not to marriage status 04 OCT 16
R1.4 PinkNews.co.uk: Austria's parliament legalises civil unions 10 DEC 09
R1.3 PinkNews.co.uk: Austria allows civil partnerships but gay adoption ban stays 18 NOV 09
R1.2 MCV: Czech Republic and Austria Push to Legalise Same-sex Unions 23 DEC 05
R1.1 ILGA: State-Sponsored Homophobia PDF 382.87kb, MAY 08
R2.2 Lesbian / Gay Law Notes: Internal Revenue Service Will Acquiesce on Deductibility of Gender Reassignment Treatment Expenses PDF 423.20kb, 02 DEC 11 at 259

GayLawNet®™ "Exclusive" Sponsorship of this page IS available
Discrimination Legislation/Cases/References
1.

National

Discrimination in employment based on sexual orientation was made unlawful in 2004 [R1.1].

2.

Courts & Tribunals

On 04 January 2016, it was reported that Innsbruck's regional court ordered that the state of Tyrol pay a gay man €35,000 in damages after it ruled that he was dismissed from a new job during a trial period because he is HIV-positive and homosexual [R2.4].

In March 2011, the Constitutional Court rejected a case aimed at including gays and lesbians under laws that protect against incitement to hatred and against discrimination in non-workplace settings, by striking down Criminal Code Article 283, "Incitement to Hatred," and sections of the Federal Equal Treatment Act because they exclude gays and lesbians [R2.3].

In July 2003, the European court ruled that a gay man who lost his tenancy when his partner died was the victim of unlawful discrimination [C2.2], [R2.1].

In 1996, the Austrian Supreme Court had previously ruled that tenancy protection for a 'life companion' was only intended to apply to different sex cohabitees [R2.1].

R1.1 ILGA: State-Sponsored Homophobia PDF 382.87kb, MAY 08
R2.4 TheLocal: HIV-positive man awarded damages for unfair dismissal 04 FEB 16
R2.3 PinkPaper: Austrian Constitutional Court rejects gay case 29 MAR 11
C2.2 European Court of Human Rights: Karner v Austria (Application No. 40016/98) 24 JUL 03
R2.1 Gay.com UK: European Court Rules in Favour of Gay Bereaved Partners 25 JUL 03
Estates, Inheritance, Property, Succession, Wills Legislation/Cases/References
1.

Courts & Tribunals

In July 2003, the European court ruled that a gay man who lost his tenancy when his partner died was the victim of unlawful discrimination [C1.2], [R1.1].

In 1996, the Austrian Supreme Court had previously ruled that tenancy protection for a 'life companion' was only intended to apply to different sex cohabitees [R1.1].

C1.2 European Court of Human Rights: Karner v Austria (Application No. 40016/98) 24 JUL 03
R1.1 Gay.com UK: European Court Rules in Favour of Gay Bereaved Partners 25 JUL 03
Gender Identity, Intersex,
Transgender, Transexual

[?]
Legislation/Cases/References
1.

National

In August 2010, the federal education ministry confirmed Walter S, man turned woman now called Andrea, will not be dismissed or suspended after a sex change operation. "Schools are home to tolerance, not discrimination," the ministry statement said [R1.1].

2.

Cities & Towns

In December 2011, the City of Vienna reportedly rejected the order of the Interior Ministry under which the "man" be listed first on marriage certificates, thus effectively "outing" transsexual marriages in circumstances where certificates need to be presented [R2.1].

3.

Courts & Tribunals

On 11 October2016, it was reported that a court ruled that intersex person Alex Jürgen from Steyr in Upper Austria, who applied to have 'third gender' entered into his passport, has to identify as either female or male. When Alex tried to change his/her birth certificate to state 'intersex', the local council said that the computer programme only accepts 'male' and 'female' [R3.2].

On 29 November 2010, Administrative Supreme Court ruled that the Interior Minister's requirement that spouses be identified as "man" and "woman" on marriage certificates, resulted in "outing" the transsexual member of couples and should be discontinued [R3.1].

1. National
R1.1 Austrian Times: Transsexual allowed to teach 30 AUG 10
2. Cities & Towns
R2.1 Lesbian / Gay Law Notes: Internal Revenue Service Will Acquiesce on Deductibility of Gender Reassignment Treatment Expenses PDF 423.20kb, 02 DEC 11 at 260
3. Courts & Tribunals
R3.2 TheLocalAT: Austrian intersex person denied 'third gender' passport 11 OCT 16
R3.1 Rechtskomitee LAMBDA: Administrative Supreme Court Ends Transsexuals' Forced Outing PDF 60.49kb, 02 FEB 11
Hate Crimes, Hate Speech Legislation/Cases/References
1.

Courts & Tribunals

On 05 May 2017, the appeals court in Vienna reportedly ruled that Facebook must remove postings deemed as hate speech against Greens leader Eva Glawischnig as well as any verbatim repostings, and said merely blocking them in Austria without deleting them for users abroad was not sufficient. The ruling has international ramifications as the court ruled the postings must be deleted across the platform and not just in Austria [R1.1]. Any appeal is considered likely.

R1.1 ReutersUS: Austrian court rules Facebook must delete 'hate postings' 08 MAY 17
HIV, Aids Legislation/Cases/References
See also: [DISCRIMINATION]
1.

Courts & Tribunals

On 04 January 2016, it was reported that Innsbruck's regional court ordered that the state of Tyrol pay a gay man €35,000 in damages after it ruled that he was dismissed from a new job during a trial period because he is HIV-positive and homosexual [R1.1].

R2.4 TheLocal: HIV-positive man awarded damages for unfair dismissal 04 FEB 16
Homosexuality, Sodomy Legislation/Cases/References
1.

National

On 14 September 2015, the Minister of Justice proposed a new law - called The New Federal Law for the Acquitance of Sentences Under Sections 129 I, 129 I lit. b, 500 or 500a Criminal Law 1945 and §§ 209 or 210 Criminal Code - pardoning homosexual men and women sentenced under former anti-homosexuality laws - if they apply for it and a court finds them not guilty. Two years ago the European Court of Human Rights accused Austria - among other countries - of violating the European Convention on Human Rights by not clearing their criminal records [R1.2].

In 1971, consensual sex between same-sex couples was decriminalised [R1.1].

R1.2 GayStarNews: Austria may finally pardon people convicted under anti-gay laws 15 SEP 15
R1.1 ILGA: State-Sponsored Homophobia PDF 382.87kb, MAY 08
Marriage Legislation/Cases/References
1.

National

On 18 June 2015, the National Assembly voted 110-26 against a proposed resolution to grant lesbian and gay couples ‘the human right of equal marriage’ [R1.2].

In September 1996, Austria's first same-sex wedding took place at a church in Vienna's Simmering district [R1.1].

2.

Courts & Tribunals

On 11 February 2013, Chretien van der Leest and Edwin Veldt were reported to have taken their case for recognition of their marriage in the Netherlands to the Austrian Constitutional Court and to the Administrative Supreme Court, asking these courts to refer their case to the Court of Justice of the European Union for a preliminary judgment [R2.4].

On 22 November 2012, the five-judge panel of the Grand Chamber of the European Court of Human Rights rejected the referral request relating to the case of Schalk and Kopf v. Austria (application no. 30141/04) submitted by the applicants [R2.3].

On 24 June 2010, the European Court of Human Rights in Schalk and Kopf v. Austira clarified that the European Convention on Human Rights (ECHR) does not oblige member states to legislate for or legally recognize same-sex marriages [C2.2].

On 05 August 2004, the complainants in Schalk and Kopf v. Austira took their case to the European Court of Human Rights [R2.1].

On 12 December 2003, the Constitutional Court dismissed a complaint in Schalk and Kopf v. Austira that the legal impossibility for a same-sex couple to get married constituted a violation of their right to respect for private and family life and of the principle of non-discrimination.

See: Laws - European Union - Marriage

R1.2 GayStarNews: Austria votes against gay marriage 19 JUN 15
R1.1 Sydney Star Observer: First Austrian Same-sex Wedding 05 SEP 96
R2.4 San Diego LGBT Weekly: Dutch couple sues for recognition of their same-sex marriage in Austria 11 FEB 13
R2.3 ECHR: Court’s judgment concerning Austrian authorities’ refusal to allow marriage of homosexual couple becomes final PDF 117.21kb, 29 NO 10
C2.2 ECHR: Case of Schalk and Kopf Application No. 30141/04, PDF 265.60kb, 24 JUN 10
R2.1 European Court of Human Rights: Schalk and Kopf v. Austria: Statement of Facts and Complaints (Application no. 30141/04) 16 FEB 10
Parenting, Adoption, Fostering Legislation/Cases/References
1.

National

On 01 Agusut 2013, legislation (passed on 04 July) allowing same-sex second-parent adoption in Austria came into force [R1.2].

Previously:

The law prevented gay couples from adopting children [R1.1].

2.

Courts & Tribunals

On 14 January 2015, the Constitutional Court president Gerhart Holzinger released a decision lifting a ban on same sex couples adopting children finding that there was “no justification for difference in treatment because of sexual orientation” [C2.4], [R2.3].

On 19 February 2013, the European Court of Human Rights delivered its judgment in the case of X and Others v. Austria (application 19010/07) ruling that the Civil Code discriminates against a partner in a same-sex relationship by making it legally impossible to adopt the biological child of the other partner while permitting second parent adoptions for unmarried heterosexual couples [C2.2], [R2.1].

R1.2 ILGA-Europe: Austria Becomes the 13rd European Country to Allow Same-Sex Second-Parent Adoption 01 AUG 13
R1.1 PinkNews.co.uk: Austria's parliament legalises civil unions 10 DEC 09
PinkNews.co.uk: Austria allows civil partnerships but gay adoption ban stays 18 NOV 09
C2.4 Decision: On the Request of Dr. *** and the Mag. *** G119-120/2014-12 PDF 300.12kb, 11 DEC 14
R2.3 TheLocal: Austria declares ban on gay adoption illegal 14 JAN 15
C2.2 Judgment: Case of X and Others v. Austria 19 NOV 13
R2.1 ILGA-Europe: European Court of Human Rights: ban on same-sex second-parent adoption is discriminatory 19 FEB 13
Estates, Inheritance, Property, Succession, Wills Legislation/Cases/References
1.

Courts & Tribunals

In July 2003, the European court ruled that a gay man who lost his tenancy when his partner died was the victim of unlawful discrimination [C1.2], [R1.1].

In 1996, the Austrian Supreme Court had previously ruled that tenancy protection for a 'life companion' was only intended to apply to different sex cohabitees [R1.1].

C1.2 European Court of Human Rights: Karner v Austria (Application No. 40016/98) 24 JUL 03
R1.1 Gay.com UK: European Court Rules in Favour of Gay Bereaved Partners 25 JUL 03

GayLawNet®™ "Exclusive" Sponsorship of this page IS available
Violence: Bullying, Domestic Violence, Harassment, Sexual Assault, Vilification Legislation/Cases/References
1.

Courts & Tribunals

On 20 October 2016, the Supreme Court reportedly overturned the finding and sentencing of a 20-year-old Iraqi refugee, accused of the rape and aggravated sexual abuse of a 10-year-old boy in a toilet cubicle at the Theresienbad swimming pool in Vienna on 2 December last year. The judges ruled that the first court should have established whether the attacker thought his victim agreed to a sexual act and intended to act against the boy's will. The defendant remains in custody pending a re-trial in 2017 [R1.1].

R1.1 TheIndependent: Man who raped 10-year-old boy at swimming pool in Austria has sentence overturned by Supreme Court 24 OCT 16

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