Gender identity under Austrian employment law

Hans Georg Laimer
Zeiler Floyd Zadkovich (ZFZ Zeiler Rechtsanwälte GmbH), Vienna
hans.laimer@zeilerfloydzad.com

Lukas Wieser
Zeiler Floyd Zadkovich (ZFZ Zeiler Rechtsanwälte GmbH), Vienna
lukas.wieser@zeilerfloydzad.com

Gender system under Austrian law

Austrian law, and thus, Austrian employment law, has so far been based on a binary gender system, providing solely for female/male gender identification.

However, in 2018, the Austrian Constitutional Court recognised that a person can have a different gender other than female or male.[2] Persons are registered in Austria pursuant to the Austrian Personal Status Act (Personenstandsgesetz) in case of birth, marriage, registered partnership or death. Such registration also includes the person’s gender. Based on Article 8 of the European Convention on Human Rights, the Austrian Constitutional Court ruled that the Austrian Personal Status Act must allow a person to refrain from stating their gender as either female or male.

Although the Austrian legislator hasn’t reacted to this ruling so far, the terms ‘inter’ or ‘divers’ have already become common terms in practice for persons with a different gender from female or male. In the following, the term ‘inter’ is used for persons whose gender is neither female nor male.

Gender-based employment law

Industrial safety law requires employers to install, if certain preconditions are met (the number of employees, certain kinds of activity, etc.), washrooms and/or changing rooms. If at least five employees from each gender are employed, such washrooms and/or changing rooms are to be installed for each gender. If there are common washrooms and/or changing rooms, the employer must ensure that they can be used in a gender separated way (eg, not simultaneous use, etc.).

The same nearly holds true with regard to toilets. If an employer employs at least five employees from each gender, separate toilets have to be installed.

This raises the question about whether employers also have to install separate washrooms, changing rooms and toilets pursuant to Austrian industrial safety law in cases where five employees, whose gender is inter are employed. It also leads to the question about how the situation should be handled in cases where the number of inter employees is below five. Based on the current law, it may, in our view, be argued that at the very least, the employer is to ensure that washrooms, changing rooms and toilets can be used in a gender separated way, for example by avoiding common areas in such rooms. However, as an infringement of these industrial safety provisions may trigger fines, clarification by the legislator would be welcome.

The Austrian Equal Treatment Act (Gleichbehandlungsgesetz, GlBG) provides, in its first part, the legal foundation for the equal treatment of women and men in the workplace. It explicitly states in § 2 that the goal of that particular section is the equal treatment of women and men. The Act further provides in § 3 that in an employment context, no one should be directly or indirectly discriminated against due to their gender. Thus, it is argued that based on the judgment of the Constitutional Court, it is now clear that gender discrimination protection under the Austrian Equal Treatment Act also covers inter employees and transsexual employees.[3] Transsexual individuals are persons who are genetically, anatomically or hormonally assigned to one gender, but who do not feel they belong to that gender. Thus, any direct or indirect discrimination of inter or transsexual employees, regarding the establishment of the employment, determining remuneration, the granting of voluntary social benefits, regarding training or retraining measures, regarding promotions, concerning other conditions of employment or the termination of the employment, is forbidden.

The Austrian Equal Treatment Act also provides for the requirement that job postings are gender neutral. Pursuant to § 9, it is forbidden to publish job postings addressing solely women or men, other than cases in which a specific gender is an indispensable requirement of the job. Although the law again explicitly refers to women and men, it is argued that an actual gender neutral job posting is only given if all gender identities, including inter, are included.[4] Thus, job postings must also be addressed to inter applicants.

The Austrian state pensions system currently still provides for different general pension ages for women and men. The statutory pension age for men is 65 years old and for women is 60 years old. As of 1 January 2024, the pension age for women will be increased by six months per year until it matches the requirement for men of 65 in 2033. It is currently unclear which pension age applies to inter persons. This question may still be of significance for an inter person who reaches pension age before 2033.

Outlook

Austrian law, and especially, Austrian employment law, lags behind the reality established by the Austrian Constitutional Court. Employers and employees would welcome the Austrian legislator facing this constitutional reality and providing for more clarity by aligning Austrian (employment) law with the ruling. Otherwise, further clarification may only be reached by the courts, which in the interim leaves everyone with unnecessary uncertainty.