Recognition of same-sex unions in Austria

Registered partnerships (Eingetragene Partnerschaft) have been legal in Austria since 1 January 2010.

History

Early rights and support (2003–2006)

On 24 July 2003, the European Court of Human Rights published its decision in Karner v. Austria, which was submitted on 24 July 1997. The applicant, who died in 2000 while the case was pending, was taken to court in 1995 by his landlord who wanted to terminate the tenancy after Karner's same-sex partner died. Austrian law provided that family members had a right to succeed to a tenancy. While the case was initially dismissed in lower courts, the Constitutional Court of Austria ruled in favour of the landlord, saying the notion of "life companion" (Lebensgefährte) was only applicable to persons of the opposite sex. The European Court of Human Rights considered this ruling in violation of the anti-discrimination provisions of the European Convention on Human Rights. Following this decision, cohabiting same-sex partners are entitled to the same rights as unmarried cohabiting opposite-sex partners.^[1]

During this period, the Social Democratic Party (SPÖ) and The Greens were in opposition while the government was led by the conservative Austrian People's Party (ÖVP). Both centre-left parties called for the recognition of same-sex unions. First, in June 2004, The Greens proposed a "Zivilpakt" (de) modelled after the French civil solidarity pact (PACS). In December 2004, the Social Democratic Party (SPÖ) adopted a major policy decision on the issue of equal treatment of same-sex couples. In addition to calling for the introduction of registered partnerships, the party supported the investigation of opening marriage for same-sex couples. In May 2005, The Greens became the first major party to expressly call for the legalisation of same-sex marriage.^[2] The Greens praised the June 2005 referendum in Switzerland legalising registered partnerships and called for equal rights in Austria.^[3] In April 2006, the Vienna branch of the Social Democrats (SPÖ) followed the Greens in explicitly calling for the legalisation of marriage and adoption for same-sex couples.^[4]

While not allowing for new same-sex marriages to be contracted, Austria indirectly saw its first same-sex marriage in 2006 when its constitutional court granted a transsexual woman the right to change her legal gender to female while remaining married to her wife.^[5] The court invalidated a regulation that required married transsexuals to divorce before their new gender was legally recognised.^[6]

Introduction of registered partnerships (2007–2010)

Laws regarding same-sex partnerships in Europe

  Marriage

  Foreign marriages recognized

  Other type of partnership

  Unregistered cohabitation

  Unrecognized

  Constitution limits marriage to opposite-sex couples

---- Includes laws that have not yet gone into effect.

Following the October 2006 election, the conservative Schüssel government was succeeded by an SPÖ-ÖVP grand coalition on 11 January 2007.

In the "Perspectives" paper released by the Austrian People's Party (ÖVP) on 1 October 2007, it announced its support for a registered partnership, based similar to the Swiss model.^[7]

An agreed draft was released in late October 2007 which would give couples in a registered partnership nearly the same rights as married couples, except for adoption rights.^[8]

It was planned that the Registered Partnership Bill 2008, based on the Swiss model, would be introduced to the parliament in September 2008, however, as the coalition of Social Democrats (SPÖ) and the Austrian People's Party (ÖVP) broke apart and early elections were scheduled for 28 September 2008, progress was delayed. The two parties saw considerable losses in the election but continued their grand coalition under the new Chancellor Werner Faymann (SPÖ).

In February 2009, Austria's Interior Minister Dr. Maria Fekter (ÖVP) 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 for same-sex couples.^[9] Maria Fekter announced that the bill for a registered partnership (Eingetragene Partnerschaft) would be introduced and enacted in Autumn 2009 and would become legal on 1 January 2010.^[10]

On 12 October 2009, the Greens urged the government to keep to its promise of having registered partnerships implemented by January 2010 with Green justice spokesman Albert Steinhauser saying that time was running out for the proposed law. The party also called for opening up marriage to same-sex couples.^[11] The next day, the Austrian Minister of Justice Claudia Bandion-Ortner announced that a registered partnership law would be announced "in a few weeks". She stated that such a law is in the process of being drafted, with some aspects of it still being under contention. A particular area of contention is whether registered partnerships should include a ceremony.^[12]

On 11 November 2009, Minister of Justice Claudia Bandion-Ortner from ÖVP presented a bill, which was rejected by SPÖ, because the bill did not include ceremonies.^{[13][14][15][16][17]}

On 17 November 2009, the Government finally approved the registered partnership bill, proposed by the Minister of Justice.^[18] The bill provides 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. The bill was passed on 10 December by the National Council, the lower house of parliament, in a 110-64 vote.^[19][20] On 18 December, it was passed by the Federal Council (upper house) in a 44-8 vote.^[21] On 30 December, the law was published in Federal Law Gazette I No. 135/2009 and took effect on 1 January 2010.^[22][23] On 4 January 2010, the first four same-sex couples were registered in partnerships in Vienna.

The Austrian LGBT rights organisation Rechtskomitee Lambda has highlighted the 72 differences between registered partnerships and marriage,^[24] and campaigns for same-sex marriage in Austria. Campaigners have questioned the current situation by challenging the lack of access to registered partnerships for opposite sex couples and the lack of access to marriage for same sex couples, with a heterosexual couple applying to have a registered partnership.^[25][26]

Broadening rights and calls for same-sex marriage (2013–present)

In January 2013, the Constitutional Court of Austria ruled that the registered partnership law was partially unconstitutional, broadening the rights for registered partnerships.^[27] 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 legislation to allow stepchild adoption by same-sex couples. The law entered into force on 1 August 2013.^[28][29]

In June 2013, in the run-up to that year's elections, the newly founded liberal party NEOS published a policy positions paper including support for full equal rights for registered partnerships, including adoption rights.^[30]

The SPÖ-ÖVP coalition government continued following the September 2013 elections. Although SPÖ had campaigned on an LGBT rights platform during the campaign, the coalition agreement did not include any measures to expand LGBT rights, due to opposition from the conservative ÖVP.^[31]

On 20 November 2013, the opposition Greens introduced a bill to Parliament that would legalise same-sex marriage.^[32] It was sent to the Judiciary Committee on 17 December 2013.^[33] The bill was due to be debated in Autumn 2014,^[34] but this was delayed by the ruling coalition.

In 2013 a case was filed with the Constitutional Court by a same-sex couple married in the Netherlands and resident in Austria, who wanted to get married under Austrian law to remove uncertainties regarding their marital status. The case was dismissed on 12 March 2014.^[35][36]

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.^[37][38] On 30 October 2015, the Justice Minister announced that the ban would no longer be enforced from 1 January 2016, thus allowing the Court's decision to automatically abolish the joint adoption ban.^[39]

On 18 June 2015, the Parliament rejected the Greens' proposal requiring the government to introduce same-sex marriage legislation. Out of 136 representatives, 26 voted for and 110 voted against the proposal.^[40] The Social Democrats (SPÖ) voted against, pointing to the fact their coalition partner ÖVP oppose same-sex marriage. NEOS (except MP Christoph Vavrik) supported the resolution, while Team Stronach and FPÖ joined the two governing parties in opposing the resolution.^[41]

Subsequently an initiative "Ehe Gleich!"^[42][43] was launched to force parliament to reconsider legalising same-sex marriage. The Petitions Committee of the National Council started considering the initiative on 17 November 2015, and called on the Ministry of Justice, led by Minister Wolfgang Brandstetter (ÖVP) and the Ministry of Families, led by Minister Sophie Karmasin (ÖVP) to state their positions.^[44] The Ministry of Families claimed that this issue fell outside of its area of responsibility, while the Ministry of Justice said that extending marriage to same-sex couples is not necessary. In November 2015, the "Ehe Gleich!" initiative filed a further lawsuit challenging the same-sex marriage ban.^[45] The case was dismissed by the Vienna administrative court on 21 December 2015.^[46] On 21 March 2016, a second same-sex marriage case was heard in the Upper Austrian administrative court in Linz.^[47] On 15 April 2016, the court dismissed the case as well.^[48]

On 30 June 2016, the Petitions Committee of the National Council, which had previously asked for the positions of the ÖVP-led Ministries of Justice and Families, considered the "Ehe Gleich!" initiative again and requested the positions of other (SPÖ-led) ministries. The Ministry of Social Affairs, led by Minister Alois Stöger (SPÖ), responded unequivocally in favour of legalisation.^[49] The Ministry of Health and Women, led by Minister Sabine Oberhauser (SPÖ), also responded in favour. These responses were followed by further calls from party colleagues for the legalisation of same-sex marriage, while coalition partner ÖVP largely remained silent on the issue.^[50] However, the Constitutional Office, led by Minister Thomas Drozda (SPÖ), gave a response which was similar to the ÖVP-led ministries, rather than in line with what his SPÖ colleagues stated.^[51] Subsequently, the Office of Federal Chancellor Christian Kern (SPÖ), only in office for a few months, stated that same-sex marriage should be legalised.^[52] As the Constitutional Office falls under the Office of the Chancellor, the latter's position superseded Drozda's position that had not been in line with other SPÖ ministers.^[53]

In late September 2016, the three ÖVP-led ministries agreed to remove two prominent differences between registered partnerships and marriages: it will be possible to register a partnership at the Standesamt (municipal civil registration) rather than the Bezirkshauptmannschaften (district authorities), and people in a registered partnership will have a regular Familienname (family name) rather than a Nachname (last name), which was specifically created for partnerships.^[54][55] On 22 November 2016, the Council of Ministers approved the draft law. Pending approval by Parliament, the law is scheduled to take effect on 1 January 2017.^[56]

On 6 October 2016, the "Ehe Gleich!" initiative was considered again by the Petitions Committee, which decided to ask for an international legal comparison by the Ministry of Foreign Affairs. This means the initiative remains pending until at least January 2017.^[57]

Public opinion

A 2006 European Union poll surveying up to 30,000 people showed Austrian support for same sex marriage at 49% (higher than the EU average of 41%).^[58]

A November 2013 poll by Market for Der Standard found that 61% support same-sex marriage (41% fully support, 20% tend to support) while 33% do not (15% fully oppose, 18% tend to oppose). Adoption by same-sex couples is supported by 56% (35% fully support, 21% tend to support) and opposed by 37% (22% fully oppose, 15% tend to oppose).^[59]

A May 2014 poll by Market for ORF found that 73% support same-sex marriage. 48% fully support, 25% tend to support, 9% tend to oppose and 15% fully oppose, while 3% did not answer. Support is higher among women and younger people.^[60][61][62]

The 2015 Eurobarometer found that 62% of Austrians thought that same-sex marriage should be allowed throughout Europe, 32% were against.^[63]

See also

• LGBT rights in Austria
• Schalk and Kopf vs. Austria
• X and Others v. Austria

References