Ministry of the Interior emphasizes: Random Gender Change Not Possible

In the case first reported by the "Krone," a man changed his gender entry shortly before starting a three-month prison sentence. According to Walter P., who has since appeared as Waltraud P., the aim of the action was to serve the sentence in a women's prison. The change was made after presenting a psychiatric report. Shortly after the change, Waltraud P. received a letter from the Pension Insurance Institution (PVA), according to her own statements, in which she was offered an earlier pension start at 61 years instead of 65 years as a man.

Psychiatric Report on Gender Change Under Review

According to the Ministry of the Interior, it is not possible in Austria to "arbitrarily change one's gender." The ministry has tasked the magistrate of the city of Vienna with reviewing the psychiatric report that led to the change in the gender entry. Based on the statements made by Waltraud P. to the "Krone," it "cannot be ruled out that it is a courtesy report and thus a criminal offense." The Federal Criminal Police Office has launched investigations on suspicion of social benefits fraud.

Former National Council member Faika El-Nagashi (formerly Green) has also filed a criminal complaint. She stated to the Kurier: "Based on all publicly available information, there is a suspicion of fraud and forgery in the specific case."

Expert Sees Effective Control Mechanisms

Legal expert Helmut Graupner sees the ongoing investigations as evidence that the Austrian legal system has effective control mechanisms: "The gender entry in the civil status register certifies the legal gender but does not determine it." The inaccuracy can be proven and must be determined by authorities and the court. The legal gender is based on the "actually socially lived gender," according to the lawyer to the APA. He doubts, based on statements from Waltraud P., that the person lives as a female. Furthermore, it must be checked whether the assessing psychiatrist negligently or intentionally issued the report and thus also made himself liable to prosecution.

The PVA emphasizes that it must always be checked at the pension date whether the insurance case has actually occurred and all conditions - including the actual gender identity - are met. If there are doubts, a different standard retirement age can be applied. This approach corresponds to the jurisprudence of the Austrian supreme courts. The SPÖ-led Ministry of Social Affairs also stated in response to an APA inquiry: "In cases where there are doubts about the relevant classification, an individual examination is carried out taking into account the relevant supreme court jurisprudence." Legally, a change of gender does not depend solely on personal sense of belonging, but requires a comprehensive consideration of the individual circumstances. From the perspective of the Ministry of Social Affairs, no legislative change is needed in this regard.

The SPÖ-led Ministry of Justice also considers the existing regulations regarding the accommodation of convicts to be sufficient. In a written statement, it says: "The accommodation of prisoners is always a case-by-case decision, made individually by weighing all circumstances." The enforcement authorities are obliged to ensure accommodation "that equally considers the protection of the rights of all inmates."

FPÖ Demands Legal Clarification

Politically, the case is causing outrage, especially among the FPÖ. The Freedom Party demands an immediate legal clarification. In contrast, the governing parties ÖVP and SPÖ see no need for action upon inquiry. "There is no need for new laws, but meticulous checks to see if gender changes are solely aimed at unlawfully gaining advantages in other areas," said the People's Party, referring to the investigations. The co-governing NEOS announced that they would examine whether there is a need for tightening procedures and regulations to "prevent such abuse in the future." The Greens stated: "In this specific case, it is obviously an abuse. This must of course be punished - the authorities are called upon to take appropriate steps."

According to the current legal situation, a statement from a psychiatrist or psychologist is required for a change of gender entry. This professional must confirm that there is a "sense of belonging to the other gender and that this is likely to be largely irreversible" and that "a significant approximation to the external appearance of the other gender is expressed." According to the Administrative Court (VwGH), a gender reassignment surgery has not been a requirement since 2009.

(APA/Red.)

This article has been automatically translated, read the original article here.