European Human Rights Court Opens Proceedings on Austrian Sexual Apartheid
12 June 2015
Conservatives are discriminating and wasting tax money
The European Court of Human Rights (ECtHR) has opened proceedings on the exclusion of same-sex couples from the civil registry offices where civil marriages are performed (Dietz & Suttasom v Austria). Over 99% of applications can’t make it to this stage. Austria has until 23 September 2015 to give reasons for relegating same-sex couples to the regional administrative offices. Rechtskomitee LAMBDA (RKL), Austria’s LGBT civil rights organisation, calls on the Conservative Party to end discrimination and the waste of tax money.
RKL-Secretary General Walter Dietz and his partner Boontawee Suttasom are living in Vienna and have been a couple for over 17 years. Manfred Hörmann and Felix Moser have been a couple for many years and are jointly running a farm in Stallhofen in Styria. Both couples had applied for concluding registered partnership at the civil registry office. Their applications have been rejected and the case went up to the Constitutional Court, which had dismissed the case in 2012 (VfGH 9 October 2012, B 121/11, B 137/11) The relegation of same-sex couples from the registrar´s office to the regional administrative offices, normally competent for the issuance of driving licences, industrial licences, residence permits, prostitution licences and similar unromantic affairs would fall into the legislator´s margin of appreciation.
Banning of same-sex couples from the civil registry office and their relegation to other offices traditionally not entrusted with civil status affairs is an Austrian and German anomaly. Apart from Austria only some German states had engaged in such discrimination. All of them have already repealed this blatant form of sexual racism.
Segregation of same-sex and opposite-couples in performing their formal partnership (marriage, registered partnership) had been one of the conservative party´s (ÖVP) prime conditions for voting in favour of the law on registered partnership. Back then later chairman of the conservative party and Austria´s vice-chancellor and foreign minister, Michael Spindelegger, stood out calling for heterosexual couples to be protected from being confronted with same-sex couples when marrying at the civil registry office. Just as back in racial apartheid when white people had been protected against sharing a bus or a restaurant with black people …
Constitutional Court at odds with its own case-law
In its case law on equal treatment of same-gender and different-gender-couples ((VfGH 22.09.2011, B 518/11, Rz 23; VfGH 03.03.2012, G 131/11, Rz 18; VfGH 12.12.2012, B 125/11, B 138/11, Rz 34; VfGH G 18, 19/13, 19.06.2013; VfGH G 16/13, G 44/13, 10.12.2013; VfGH G 119/-120/2014, 11.12.2014)) the Constitutional Court held it to be prohibited discrimination when the only purpose of a distinction between hetero- and homosexual couples is segregation between the two groups (“qua principle”); distinctions must be necessary for particularly serious reasons the Court said. In sharp contrast the same Court in its civil-registry-office-judgment confirmed exactly such a blatant end-in-itself segregation (“qua principle”). The judges approved the banning of same-sex couples from the civil registry office and their relegation to another, prosaic and unembellished office.
With the support of Rechtskomitee LAMBDA (RKL), Austria’s LGBT civil rights organisation, the couples took their cases to the European Court of Human Rights, which now has opened proceedings in one of the two (Dietz & Suttasom v Austria) and communicated the application to the Austrian government. Over 99% of applications can’t make it to this stage. The Austrian government has until 23 September to give reasons for relegating same-gender couples to segregated offices. Last March the ECtHR opened proceedings on the exclusion of heterosexual couples from registered partnership (Ratzenböck & Seydl v Austria). In these proceedings the Austrian government asked for an extension of the deadline 25 June set by the Court for justification of restriction of registered partnership to samegender couples as they would not be able to submit justification in time, "for technical reasons".
„The double structure civil-status-offices/regional-administrative-offices is pure waste of tax money out of lust to disriminate“, says Dr. Helmut Graupner, president of Austria’s LGBT civil rights organisation Rechtskomitee LAMBDA (RKL) and counsel of the applicants, “Acting with incredible discriminatory energy legions of civil servants have been andare occupied with inventing, employing, enforcing and finally justifying and defending the absurdest kinds of discrimination”. "The Conservative Party should finally realise the signs of the times and bring discrimination and waste of tax money to an end", Graupner closes.