The Power of Queerness: The Gay and Lesbian movement in

1
The Power of Queerness: The Gay and Lesbian movement in Austria and the
impact for a new legislation on sex
(in 2nd half of the 20th and the 21st century)
Dr. Martin J. Gössl
Paper session: Queer Politics
Thursday, November 21: 02:45 PM-04:45 PM
Introduction
In 1852 the Austrian emperor Franz Joseph signed a specification of the criminal law
against same-sex acts. This law remained unchanged for 119 years.1
Of course a speech concerning the history of this paragraph would take longer than a
mere 20 minutes; and it would need as well to be a long historical venture into the
Austrian past, which can hardly remain limited to two centuries. Allow me, therefore,
in this presentation to focus on the LGBT movement in the 2nd part of the 20th
century; furthermore, I aim to present at least a few details with regard to the
progress of an Austrian queer movement in the 21st century. Or, to be more precise, I
will talk about the last 26 years of this ancient paragraph and the ensuing period,
concluding with the legal regulation of same-sex partnerships in 2010.
I look forward to your questions and comments at the end.
After 1945 – before 1971
After 1945 and the 2nd world war, the former Austrian criminal law, i.e. (= id est) the
law as it stood before Austria was occupied by Nazi Germany, was established again
without any changes. As a consequence same-sex acts were still prohibited by law; a
law which was at this time nearly one hundred years old. Even the fact, that gay and
lesbian people had been prosecuted, punished, tortured and brutally killed during the
Nazi regime2 did not make any differences at that time; what‘s more, the question
wasn't even an issue at all.
Basically in those first years people in Austria had to struggle every day in order to
manage their lives after this destructive war and to build up an everyday
infrastructure. So it happened that social, economic and diplomatic topics dominated
1
Cf: RKLambda, RKL-Präsident Graupner: "40 Jahre nach Aufhebung des Totalverbots noch immer keine
Gleichberechtigung für Homosexuelle in Österreich!", www.RKLambda.at (Wien 16.8.2011);
2
Cf: Günter Grau (Hg.), Homosexualität in der NS-Zeit, Dokumente einer Diskriminierung und Verfolgung
(Frankfurt am Main 2004);
2
public and political discourse. Nevertheless time and place were found quickly for a
first parliamentary discussion about morality. It happened in Vienna 1948.3
Several members of parliament formulated an official request to the minister for
legal affairs, whether the current laws concerning morality were still appropriate. The
clear answer from the ministry, just a few months later: No; something has to
change.4
As a result, just two years later a new law was created and named "Federal act to
fight against bawdy publications and to protect the youth from moral
endangerments"5.
One central argument by a famous conservative member of parliament (short: MP) of
the time says: "... now it is prohibited and a person can be prosecuted, if he or she
either publish, distribute or sell writings, pictures or paintings, which over-exercise or
irritate the normal sexual-feelings of our youth."6. What was more, gangster movies
from the United States, especially, might perhaps awaken criminal instincts in the
young people's minds. And, moreover, lascivious productions could replace the ideal
of noble femininity with that of a "schamlosen Dirnentum" - a shameless strumpetry.7
Again, especially film productions from the US with were in the center of attention.
A few representatives resisted this new regulation and contributed arguments such
as that, as a consequence, one would, in that case, need to regard the seedy
reputation of artists such as Rubens or Leonardo da Vinci whose works were to be
found in Austrian galleries.8
At first sight no LGBT issues were discernible in this discussion about morality, but in
the stenographic protocols of the debate a few brief notes can be found, which imply
that "homosexuality" was an unexpressed aspect of this legal regulation: one
representative argued that this law should be not restricted to the young, because
newspapers were full of reports about gay prostitution in bath houses and so on.9
3
Cf: Martin J. Gössl, Von der Unzucht zum Menschenrecht, Eine Quellensammlung zu lesbisch-schwulen
Themen in den Debatten des österreichischen Nationalrats von 1945 bis 2002, mit persönlichen Erinnerungen
von Peter Schieder und einem Beitrag zur Strafrechtsreform 1971 von Hans-Peter Weingand (Graz 2011), S. 77;
4
Cf: Gössl, Von der Unzucht zum Menschenrecht, S. 78;
5
Cf: Gössl, Von der Unzucht zum Menschenrecht, S. 78;
6
Gössl, Von der Unzucht zum Menschenrecht, S. 79;
7
Gössl, Von der Unzucht zum Menschenrecht, S. 80;
8
Cf: Gössl, Von der Unzucht zum Menschenrecht, S. 79;
9
Cf: Gössl, Von der Unzucht zum Menschenrecht, S. 80;
3
At the end, a majority of the MPs approved the law and shortly after, it became
universally valid.10
Further initiatives to regulate morality were not initialized successfully but a few
short debates had been popping up now and then. At least at the end of the 1960s a
revision of the Austrian criminal law got on the road, so a special parliamentary
commission - consisting of representatives of all parties - was established. Before any
proposal had been presented, the general election forced the parties 1970 to take a
break and to wait for the new composition of the parliamentary assembly.11
Revision of the Austrian criminal law - Allowed to be gay
The election in March 1970 totally changed the composition of the parliamentary
assembly. After years of a conservative majority the labor party became the strongest
political fraction in the national council (parliament).12 13
Finally, one year later, in an official meeting in 1971, a special commission reported
to the full house of parliament on the discussions which had taken place and
furthermore concerning a proposition for a new, revised criminal law, which had to
be approved.14
As a consequence an official debate started and developed into one of the most
intensive in Austrian history. Dozens of representatives felt compelled to define their
positions. However, at the very beginning, the head of the special commission, Karl
Reinhart from the labor party, gave an introduction and overview. During this he
determined that all experts from the scientific world declared that the prohibition of
same-sex relationships between two adults (anyone over the age of 18) was legally
senseless; moreover, the criminalization of such people had proved
counterproductive. Further on, Reinhart emphasized that this new regulations did
not mean that public responsibility should end here. He mentioned that it had to be
clear to everyone that "Sodomy" was still not a socially adequate lifestyle. As a result,
Karl Reinhart argued for the creation of four paragraphs penalizing gay/lesbian issues
under specific circumstances. First, advertising with same-sex content (literally
translated "fornication") was to be forbidden. Second, same-sex prostitution was to
be illegal, third, it was not to be permitted to found a club for any same-sex related
10
Cf: Gössl, Von der Unzucht zum Menschenrecht, S. 81;
Cf: Gössl, Von der Unzucht zum Menschenrecht, S. 83, 84;
12
Cf: Gössl, Von der Unzucht zum Menschenrecht, S. 86;
13
Please allow me a short comment on Arnold Schwarzenegger’s convention address several years ago,
when he declared: “As a kid, I saw the socialist country that Austria became after the Soviets left.” Between
1945 and 1970, all the elected federal chancellors of the Republic of Austria were conservatives – not
socialists.
14
Cf: Gössl, Von der Unzucht zum Menschenrecht, S. 88;
11
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purpose and fourth, there was to be a different age of consent for homosexual and
heterosexual couples.15
One conservative representative declared that, primarily, the international
comparison affected this legal review.16 Another one, also from the conservative
party, argued, that he had never seen a happy pervert. He made out that
homosexuals were and would be always different from the majority and never an
accepted part of a religio-moral - Catholic society.17
Surprisingly, even liberal representatives who assured that they support the legal
change, found different arguments to justify these four paragraphs in their minds. It
was always the youth-protecting argument and the inability at a certain age to define
a "normal" sexual orientation. It might be very easy, according to the stenographic
protocols of the Austrian parliament, to infect teenagers with a homosexual way of
life.18
Another conservative member of parliament stated quite simply, and received
applause from one and all afterwards: "Homosexuality is abnormal, unnatural!”19.
At the end the changes in the Austrian criminal law were approved by parliament.20
Getting rid of the Four
After 119 years of total prohibition of same-sex love, it took the Austrian parliament
another 30 years to remove the following four paragraphs: because of Aids, in 1989
the first paragraph banning same-sex prostitution was deleted from the criminal act.
The central argument: no prostitute would ever attend a health examination as long
as it remained illegal to be in the business in the first place. In an effort to hold back
HIV and Aids, representatives followed the expert‘s suggestion.21
In 1997 two further paragraphs were annulled by parliament. Accompanied by this
vote, a second, intensive discussion began and delineated two specific political
camps. If in the past, labor, conservative and a few in-between representatives were
agreed that homosexuality was abnormal, at the end of the Eighties and at the
beginning of the Nineties, something changed: not only the appearance of smaller
parties in parliament - namely, the Green and the Liberal party - diversified opinions,
moreover, contact with international circles such as, for example, the European
15
Cf: Gössl, Von der Unzucht zum Menschenrecht, S. 89;
Cf: Gössl, Von der Unzucht zum Menschenrecht, S. 91;
17
Cf: Gössl, Von der Unzucht zum Menschenrecht, S. 92;
18
Cf: Gössl, Von der Unzucht zum Menschenrecht, S. 94;
19
Gössl, Von der Unzucht zum Menschenrecht, S. 95;
20
Cf: Gössl, Von der Unzucht zum Menschenrecht, S. 102;
21
Cf: Gössl, Von der Unzucht zum Menschenrecht, S. 119-124;
16
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Union, confronted many MPs and society as a whole, with a broader understanding
of human rights. This understanding, formally but a hardly recognized perspective of
this world by a few people, advanced to becoming the position of important opinionleaders and later of a majority.22
At last, in 2001, coming into force 2002, the last paragraph, the different age of
consent, was modified so as no longer to be restricted to a same-sex dimension
anymore. To give a short impression of the real relevance of this criminal paragraph,
here are a few figures to illustrate: in 1972 there were 109 investigations on the basis
of the different-age-consent paragraph. In 1980 there were 82, in 1990 54 and in
2000 there were still 24 cases reported. The number of convictions: 1972 57 persons,
1980 33, 1990 31 and 2000 10 persons. The consequence was a deprivation of liberty;
in the Seventies this could be a term of 1 to 3 years, and by the end – in 2000 - 22
percent of the reported delinquents were convicted to a 6 to 12-month term.23
Queerness and human rights - still a question of perspectives
One specific development in Austrian political culture has become visible, particularly
since the end of the Eighties: It concerns a minimum common understanding what
human rights include and this, in turn, determines the basis of everyday political
discussion. Discussing queer politics in Austria is totally dependent upon the typical
clientele of the parties: do you regard yourself as a working-class member or as a
conservative/religious person?24
The public discourse of the past 30 years has affected the latest and current political
culture. Since the 1980ies and the beginning of the elimination of the four paragraphs
which penalized specific same-sex dimensions, the political viewpoint regarding LGBT
equality has, in this one-dimensional interpretation, become an opposing viewpoint
to traditional values; from a conservative perspective, human rights are individual
issues and not automatically relevant with regard to public regulations such as
marriage laws or family acts. Left-wing parties, on the other hand, represent the
other perspective.25 As an effect, queer politics have advanced more and more to a
cultural issue; to a statement about my moral understanding.
During the Nineties and the first years of the 21st century, these two positions
paralyzed all issues relating to a queer sphere: anti-discrimination acts, compensatory
22
Cf: Gössl, Von der Unzucht zum Menschenrecht, S. 105-203;
Cf: RKLambda, Graupner: "40 Jahre nach Aufhebung des Totalverbots", www.RKLambda.at;
24
Cf: Martin J. Gössl, Die Rezeption lesbisch-schwuler Themen und Rechte im österreichischen Nationalrat von
1945 bis 2002, Eine Quellensammlung mit analytischer Schlussbemerkung, Dissertation (Graz 2010), S. 216234;
25
CF: Gössl, Die Rezeption lesbisch-schwuler Themen, Diss., S. 216-234;
23
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damages for LGBT victims of National-socialism, same-sex partnership arrangements,
concepts for memorial to LGBT victims of the Nazi regime, transgender acts and so
on.
In 2010, after several intensive years of political discussion, the act creating a
domestic partnership for same-sex couples was approved and established by the
Austrian parliament.26
In the course of this, it proved impossible to open the Austrian marriage laws for both
different- and same-sex couples because, again, the conservative aspiration to
protect traditional values from LGBT equality, blocked every queer-minded attempt
at a solution.
In the 21st century, queerness is still one of the most polarizing issues in Austria and
permanently under political pressure. But as a consequence, queer dimensions, and
this can be taken as something positive, are part of a political discourse. It has
become part of the everyday political business.
Changes can be made, but, mostly, changes for LGBT equality are motivated by
international comparison or EU court decisions.
Just another positive aspect of the European Union.
26
Rosalila PantherInnen, Die eingetragene Partnerschaft, www.partnerschaftsgesetz.at (Graz 1.9.2012);