LGBTQ rights: Austria at the top and bottom

LGBTQ rights: Austria at the top and bottom

While some countries “continue to make positive progress”, it is “worrying” that other countries are “introducing new forms of discrimination against LGBTQ people”, concludes ILGA Europe, a European-level advocacy group for gay, bisexual and transgender people – and interpersonal uses. Since 2009, ILGA Europe has calculated the Rainbow Index annually to reflect the equal status of LGBTQ people in Europe.

In the seven categories of equality and non-discrimination, family, hate crime and hate speech, legal gender recognition, physical integrity, civil society and asylum, the implementation of laws is evaluated and weighted and then added to a total score. The result: a map of Europe with what appears to be a northeast-southwest gradient.

Rainbow Index 2022: Countries ranked according to their respective legal and policy practices for LGBTQ people on a scale from zero to 100%. Information on individual countries available with one click

Northeast-southwest gradient with caveats

However, there are definitely politically motivated efforts to widen these supposed gaps, explains Katrin Hugendubel, lobbyist for ILGA Europe when asked by ORF.at: “Many political figures in Europe, who present themselves as defenders of so-called traditional and national values, feed the alleged East-West divide for its own political gain – including the use of LGBTQ people as scapegoats.”

Contrary to the appearance that the eastern countries are lagging behind, there are definitely positive developments in these regions. In Greece, Latvia, Lithuania, Serbia, Slovenia and Slovakia, for example, there has been an improvement in LGBTQ rights. At the same time, “not everything is rosy in the West either,” continued Hugendubel. Significant deterioration has occurred in Great Britain, and anti-discrimination protection is also pending review in the Netherlands.

CoV crisis as a pretext

Also in connection with the CoV crisis, regulations have been passed and implemented in some countries that restrict the rights of LGBTQ people, according to ILGA Europe’s annual report: “The state of emergency has allowed governments to pass laws that have nothing to to do with the pandemic has to do, but attack LGBTQ rights head on, fast.”

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Hungary restricts book sales

For example, the anti-pedophile law passed in Hungary in June caused huge protests. It is prohibited to provide information about homosexuality, transsexuality and gender reassignment to persons under 18 years of age. This also applies to the sale of children’s books with content that deviates from the heterosexual norm.

Before the law went into effect, there were numerous protests from human rights organizations and the LGBTQ community – but to no avail. The EU launched infringement proceedings against Hungary in response to the law. It has been in the second phase since December. A request to the EU Commission about this was not answered.

Other fundamental rights are also at risk

Furthermore, there is a clear connection between LGBTQ rights and other fundamental rights, such as freedom of the media and independence of the judiciary, writes ILGA Europe when evaluating the latest index. In countries where “freedom of the media or the judiciary is under attack,” bias is more common in court proceedings, smear campaigns, and censorship of LGBTQ content, as well as political interference.

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Attacks on the judiciary and therefore on LGBTQ rights are particularly common in Poland, “where the Ministry of Justice uses its powers, for example, to repeatedly appeal against decisions handed down in favor of LGBTQ suspects”.

In almost half of the countries there are still “significant gaps in terms of basic protection against discrimination and violence”, says Hugendubel: “Currently in 20 of the 49 countries there is still no protection against hate crimes based on sexual orientation, while 28 countries do not have protection against violence based on gender identity”.

Austria between recovery and advantage

Even though the situation in Austria cannot be compared to that in Hungary, discrimination and disadvantage are still part of everyday life for many people in the LGBTQ community. In the index ranking, this is reflected in a placement of around 50% per year – more recently around 48%.

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Ending homosexual discrimination

Austria has made great strides in recent years, but “Austria is at the bottom of the list in Europe, especially when it comes to equal treatment and protection from discrimination,” explains Helmut Graupner, lawyer and chairman of the Lambda Legal Committee, in a interview with ORF.at. More recently, the long-criticized ban on blood donation for homosexuals has been lifted.

“Medieval” gap in protection against discrimination

While discrimination based on sex and sexual orientation is prohibited in the workplace, the only protection against discrimination outside the workplace is based on sex. “It is therefore permissible in Austria to expel people from a taxi or restaurant or to refuse services because of their sexual orientation,” explains Graupner. This leaves Austria far behind when it comes to protection from discrimination.

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If a complaint is filed, however, there are other obstacles – for example, in the case of hate speech. “For ten years, sexual orientation was finally cited as a reason for hate speech,” Graupner said. However, verbal abuse is subject to two limitations.

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On the one hand, with the intention of violating human dignity. And, on the other hand, the insult must be adequate to make the population group in question contemptible or despised by public opinion. “On the Internet, it is difficult to prove intent to degrade human dignity,” explains Graupner. Advertisements, therefore, would hardly be fruitful.

Legal and social gender recognition

There is also a need to catch up in Austria on the level of discrimination based on sex. According to the annual report, ILGA Europe sees positive developments in the area of ​​physical integrity of individuals. However, Austria achieves a whopping zero percent in this area. However, the average for all European countries is not much higher than four percent.

In June of last year, the Austrian parliament adopted a resolution aimed at protecting intersex children from unsolicited and medically unnecessary interventions. In addition, the first birth certificate with the gender designation “inter” was issued in 2021.

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There is a gap in German

Graupner also sees room for improvement when it comes to defining gender as a ground for discrimination: “It would also be desirable to specify the ground for discrimination more precisely, i.e. gender identity and gender characteristics.” a person identifies.

Data on hate crimes and online hate is similarly incomplete. There is little or no breakdown of criminal charges on grounds of prejudice according to the respective ground of discrimination. On the one hand, reasons for prejudice are often not recorded, on the other hand, only what is reported can be recorded.

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Hatred on the Net: Theory versus Practice

In many EU member states, ILGA Europe has seen an increase in hate and threats of violence, including death threats – especially on the internet – against people in the LGBTQ community. This is being fueled by “growing anti-LGBTQ rhetoric from politicians and other leaders,” Hugendubel said.

In Austria, the package of laws against “online hate” came into force at the beginning of the year. The aim is to accelerate the process of removing hate speech, provide more structural and financial support to victims, and punish online platforms that do not comply with the law. But the path from legal theory to everyday practice is a long one.

Between November 2020 and April 2021, the Ministry of the Interior began to systematically record reasons for bias in criminal complaints. According to a pilot report by the Institute for the Sociology of Law and Crime (IRKS), 97 hate crimes committed on the basis of sexual orientation and 129 on the basis of gender were recorded during the period examined.

Transphobic hate crimes, for example, were misreported under both “gender” and “sexual orientation”, criticizes ILGA Europe. According to the report, data collection is “predominantly dependent on the reporting behavior of the population” and “police investigation and documentation practice”.

The abolition of paragraph 209

2022 marks the 20th anniversary of the Constitutional Court repealing paragraph 209 on discrimination, which regulates a different age of consent for gay men compared to others for sexual acts.

Lack of implementation of framework conditions

At the EU level in particular, it is clear that no more framework conditions are needed, but that existing laws such as the 2020 Equality Strategy for LGBTQ People should be implemented, says Hugendubel: Commission and Council to defend the rule of law where it was violated.”

Not only in the EU, but throughout Europe, the European Convention on Human Rights actually offers good protection against discrimination. According to Graupner, Austria also has a good record of implementing Council of Europe decisions. However, it is surprising that a “top priority” such as protection from discrimination based on sexual orientation has not yet been implemented outside the workplace.