Lesbian, gay, bisexual, and transgender (LGBT) rights in Austria have advanced significantly in the 21st century, and are now considered among the most developed in the world. Both male and female same-sex sexual activity are legal in Austria. Registered partnerships were introduced in 2010, giving same-sex couples some of the rights of marriage. Stepchild adoption was legalised in 2013, while full joint adoption was legalised by the Constitutional Court of Austria in January 2015. On 5 December 2017, the Austrian Constitutional Court decided to legalise same-sex marriage, and the ruling went into effect on 1 January 2019.
The country, while influenced by Roman Catholicism, has become more liberal with laws and social opinions concerning sexual orientation and gender identity over time. However, there are still many LGBT minorities who think that being different is a problem. In June 2019, Minister of Education, Science and Research Iris Eliisa Rauskala became the first government minister to come out as lesbian.
Law regarding same-sex sexual activity
In 1770, the Constitutio Criminalis Theresiana, the first unified criminal law for the Habsburg hereditary lands, criminalized various sexual acts, including sodomy. Offenders were subject to decapitation and burning, and sometimes branding. However, same-sex acts were not consistently pursued, and Maria Theresa had the authority to grant pardons.
In 1787, Joseph II reformed the law, introducing milder punishments. Although the death penalty for homosexuality was officially abolished, it was replaced with forced labor, including the brutal practice of ship pulling.
In 1803, a new criminal law abolished ship pulling for homosexuals, substituting it with imprisonment for six months to one year.
The criminal code underwent several amendments until 1852 when impropriety against nature was still punishable, with increased imprisonment from one to five years.
Legal interpretations evolved over time, initially exempting certain acts but later broadening the scope to include all immoral acts with a person of the same sex.
Following the "Anschluss," the attempt to establish consistent criminal legislation and incorporate National Socialist principles into Austrian law was unsuccessful, resulting in the retention of the 1852 Criminal Code. Thus, there was a difference in prosecution of homosexuals between Germany and Austria.
In 1971, an amendment to the Penal Code decriminalised non-commercial same-sex sexual acts between adults, while at the same time introducing a new provision (Section 209), which set the age of consent for gay male sex at 18, 4 years higher than the lesbian and heterosexual age of consent, which was instead set at 14.
On 10 July 2002, Parliament passed a law formally repealing Section 209, which had already been declared unconstitutional and unenforceable by the Constitutional Court of Austria on 2 June 2002.
In 2003, the European Court of Human Rights ruled in S. L. v. Austria that setting an unequal age of consent was incompatible with the Convention; the case had been brought before the Court prior to the repeal of Paragraph 209.
Despite widespread support to set up an "expungement or compensation scheme" for old historical gay sex criminal records, as of July 2020, the government of Austria has not implemented it yet.
Recognition of same-sex relationships
Following the ruling of the European Court of Human Rights in Karner v. Austria in 2003, cohabitating same-sex couples were given the same rights as cohabitating opposite-sex couples.
First planned in 2007, registered partnerships have been legal in Austria since 1 January 2010.
Before the Constitutional Court decided to legalize same-sex marriage, the Austrian Government had not legalised same-sex marriage due to opposition by the Austrian People's Party (ÖVP). The Greens had however introduced a bill in Parliament, and in 2015 a citizens' initiative "Ehe Gleich!" was set up to petition the Parliament to consider the legalisation of same-sex marriage. They also filed a lawsuit challenging the current law; however, it was dismissed by a lower court. A second lawsuit was heard on 21 March 2016 in Linz. On 15 April 2016, a court dismissed the case as well.