Court Opens the Door for Same-Sex Marriage in Austria – Peter J. Smith

Vienna -Austria’s Constitutional Court published this Wednesday a decision striking down the Interior Ministry’s 1996 Transsexual Decree, which forbids same-sex marriages. Austria currently does not recognize homosexual unions, but the judicial activism from its highest court may have set it down that road.

The case came before the Constitutional Court after a married man demanded that he have the right to change the registered sex on his birth certificate from male to female to reflect the sex-change operation he had two years ago. The Interior Ministry denied him this ability since it violated its own decree, which was designed to prevent the appearance of a homosexual marriage in Austria. Although the decree permitted unmarried transsexuals to change their registered sex on legal documents, the Constitutional Court threw out the Ministry’s decree, deciding that the “recording the sex of a person cannot be prevented by the existence of a marriage”.

Although the court’s decision immediately abolishes the decree, it left open the question about the status of the plaintiff’s current marriage with his wife or whether the law still recognizes him as married. The plaintiff’s lawyer, Helmut Graupner, has threatened legal action if the Austrian government decides to rectify this problem of legal recognition of a same sex-union, claiming that there is no legal regulations for a couple to divorce on account of a spouse’s sex-change.

“The decision of the Constitutional Court could possibly set a precedent inspiring other couples to make the same move,” said lawyer Elisabeth Rech on Austrian Radio. Homosexual organizations are celebrating what they call the “first same-sex marriage” in Austria.

The Interior Ministry, which is run by the conservative People’s Party, has said that it would study the details of the ruling before taking any action. The People’s Party recently defeated a measure to allow same sex unions.