Austria: Discriminations against Sex Workers

General Issues (Articles 2, 3, 4)

Key issues of this report are deficiencies in the enjoyment of the right to work and the right to health. These deficiencies are also discriminations against women in the enjoyment of the rights under this Covenant.

• 
  The author acknowledges that in a time of economic crisis budgetary constraints may make the full realization of all economic and social rights more difficult. However, the principle of progressive realization (Article 2) prohibits deliberately retrogressive measures (General Comment 3/1990 of this Committee at § 9), in particular if directed solely against vulnerable groups. Sex workers are known to be a vulnerable population, and worldwide their well-being and health is largely affected by government policies. ^{NOTEREF _Ref341178537 \h \* MERGEFORMAT} As will be elaborated in the sections below, Austrian regulations and policies for prostitution control cause impediments for them.
  
• 
  Further, the author acknowledges that the considered policies and regulations are couched in gender neutral terms and affect only a small population. However, as most persons in sex work are women, the resulting factual interferences specifically impair women in the enjoyment of certain rights. Therefore, these interferences are (indirect) discriminations against women that contravene Article 3 about equal rights of men and women. Concerning male-to-male sex workers, these deficiencies are discriminations due to the “other status” of being a sex worker and as such they contravene § 2 Article 2.
  
• 
  As will be explained in the sections below with respect to Article 4, none of these discriminations is legitimated by the nature of the rights of this Covenant and none of these discriminations can claim to serve “the general welfare in a democratic society”. On the contrary, discriminatory policies resulted in stigmatization, which in itself is a form of violence against women. ^{NOTEREF _Ref341178537 \h \* MERGEFORMAT} Thereby with all due respect the author requests that the consideration of these issues be guided by the principle ^{NOTEREF _Ref341178537 \h \* MERGEFORMAT} that “basing one’s judgment on respect for human dignity does not mean taking a moralistic approach, however. It means respecting people’s decisions and choices as long as they harm no one else.”
  
• 
  There are also barriers in the access to remedies against discrimination. ^{NOTEREF _Ref341178537 \h \* MERGEFORMAT} Despite the concerns and previous recommendation to Austria by this Committee under Article 2, ^{NOTEREF _Ref341178537 \h \* MERGEFORMAT} “there is no comprehensive institutional and legislative framework for the protection and promotion of human rights in Austria”. ^{NOTEREF _Ref341178537 \h \* MERGEFORMAT} Further, although Austria ratified several international human rights agreements and Article 9 Federal Constitutional Law would commit Austria to fulfill these obligations, the provisions of this Covenant are not part of the domestic legislation: Individuals may not invoke these provisions before national courts. ^{NOTEREF _Ref341178537 \h \* MERGEFORMAT}
  

The described discriminations illustrate Austria’s complacency about women’s economic rights in general (Article 3). This is demonstrated statistically in terms of the Cingranelli-Richards Human Rights Data Project (CIRI), specifically its index WECON. ^{NOTEREF _Ref341178537 \h \* MERGEFORMAT} It quantifies deficiencies in women’s economic rights and makes them comparable across countries. The focus is on discrimination against women in the right to work: the right to non-discrimination by employers (equal pay for equal work, equality in hiring and promotion practices) and to job security (maternity leave, unemployment benefits, no arbitrary firing or layoffs), the rights to freely choose and to pursue a gainful employment without the need to obtain consent by a male relative, to be free from sexual harassment in the workplace, and to work at night or in occupations classified as dangerous (e.g. military, police force). According to this index, whereas Austrian law grants certain economic rights to women and Austrian government is aware of the obligation to enforce these rights, this enforcement was not vigorous during most of the present reporting period (starting in 2006), when compared to other countries (with better index values).

The author accepts that that nowhere in the world there is perfect equality between men and women. However, when compared to other European high-income countries (e.g. Norway, Sweden), the level of discrimination against women in Austria is significant and vulnerable groups, such as sex workers, are actually deprived of their rights.

3. Right to Work (Articles 6, 7, 8)

   1. Key Issues

The right to work is defined by Articles 6 to 8 in conjunction (General Comment 18/2005 of this Committee at § 8). This right

1. 
   protects against forced labor (§ 1 of Article 6), whereas Austria shows lacking vigilance against trafficking into prostitution and sexual exploitation (section 3.2);
   
2. 
   protects against unreasonable legal restrictions in choosing ones occupation (§ 1 of Article 6), whereas Austria de facto permits sex work as sole job option for asylum seeking women (section 3.3);
   
3. 
   obliges states to empower everyone to find decent work (§ 2 of Article 2), whereas Austria ignores the specific needs of women in sex work for training programs (section 3.4);
   
4. 
   obliges states to ensure just and favorable conditions of work (Article 7), whereas Austrian policies at all levels (national, provincial, communal) make working conditions in sex work deliberately harmful (section 3.5); and
   
5. 
   guarantees the right of self-organization to promote these rights (Article 8), whereas Austria discriminates against sex worker human rights defenders (section 3.6).
   

These issues do not depend on the question whether sex work is “decent work” or not. Forced labor is a violation of human dignity, regardless of the character of work (item a). Likewise, extreme legal restrictions of one’s capabilities are incompatible with human dignity (item b). The obligation to alleviate poverty asks the State Party to focus on vulnerable groups (item c). And as Austria accepts sex work as a legal source of income (section 1.3), this entails the obligation not to deliberately worsen the working conditions of sex workers (item d). Further (items c and d again), if Austria nevertheless wishes to push back sex work, first sex workers, mostly women, need to be empowered to find alternative ways in earning a living for themselves and their families. Finally, human rights are inalienable and therefore it does not matter, whose economic, social and cultural rights are defended (item e).

2.