Enoch Burke case is ‘not about transgender rights’, Court of Appeal says

This case “is not about transgender rights”, the president of the Court of Appeal said, when dismissing Enoch Burke’s appeal against High Court orders restraining him attending at a Co Westmeath school.

Mr Justice George Birmingham, Mr Justice John Edwards and Ms Justice Maire Whelan all agreed on Tuesday, in separate judgments, the appeal should be refused.

It concerned injunctions granted by High Court judges last August and September to Wilson’s Hospital School when he continued to attend there after it placed him on paid administrative leave pending a disciplinary process.

That process was grounded on an August 2022 report by the then principal which concerned Mr Burke’s public opposition at a school religious service in June 2022, and a dinner afterwards, to her May 2022 communication asking teachers to abide by the wishes of a transitioning student to address the student by a new name and using the pronoun ‘they’.

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A disciplinary hearing on January 19th last resulted in the school board of management issuing a notice of dismissal to Mr Burke. It is understood the time to appeal that notice has not expired.

Before that, Mr Burke was jailed for 108 days for contempt of the orders restraining him attending at the school. He was released without purging his contempt but, after he resumed attending at the school on January 5th, it got High Court orders imposing fines of €700 daily from January 27th until he purges his contempt. The fines stood at €28,000 on Tuesday.

All three appeal court judges ruled there was evidence to support the making of the disputed injunctions and that the balance of convenience favoured granting them.

On the case presented by the school to Ms Justice Siobhán Stack when she granted an interim injunction in late August, including Mr Burke’s persistence in attending there, it was “inconceivable” any judge would not have concluded in favour of an interim injunction, Mr Justice Birmingham said.

He noted Mr Burke fundamentally disagreed with Mr Justice Max Barrett’s view, when continuing that interim order, that the case was not about transgender issues. Mr Burke addressed that hearing in “strident” terms that would “not have been out of place at a public meeting or a political rally”.

Mr Justice Birmingham said his own view is that this case is not about transgender rights. In relation to Mr Burke’s claim of an attack on his religious beliefs, the school was presented with a choice whether or not to respond positively or negatively to the transitioning student’s request to be addressed by their preferred name and using the pronoun “they”.

The school decided to facilitate the pupil. While its reliance on the Equal Status Act may have been “misplaced”, the school authorities were well positioned to identify the appropriate response by it as a Church of Ireland school to the request, he said. Its approach was “very much in accordance” with wider public policy here as articulated in legislation such as the Gender Recognition Act.

Mr Justice Edwards said, while not doubting the sincerity of Mr Burke’s views, they “are not universally shared in society, even amongst those with Christian belief”.

The school’s decision to respect the transitioning student’s request was consistent with its stated policy of being inclusive and to ensure each young person’s experience of their time in school was “accepting, happy and positive”.

Issues relating to Mr Burke’s rights and freedoms, and whether or not his “conscientious objection” over how the transitioning student was to be addressed trumped the school’s policy, were incapable of resolution in the context of injunction applications, he stressed.

Ms Justice Whelan said, contrary to Mr Burke’s contentions, the health, safety and welfare of the transitioning student was “of central importance” in this case. Mr Burke’s refusal to identify his proposed course of action towards the student presented the school with a risk of individual discrimination towards them.

Mr Burke’s continuing attendance at the school grounds daily was not only “a wilful contempt” of court but “visits anguish and ongoing stress and anxiety” upon the minor concerned and those who care about their welfare.

Most of the issues identified by Mr Burke fall to be determined in the hearing of the main proceedings, the dispute between Mr Burke and Wilson’s Hospital, and it is in the interests of all parties that these be held “in early course”, she stressed.

A date for the main hearing has yet to be fixed and those proceedings are being case-managed in the High Court by Mr Justice Brian O’Moore.

Mr Burke has the option of asking the Supreme Court to hear an appeal against the Court of Appeal injunctions decision. If he seeks a Supreme Court appeal, a panel of that court would have to decide whether the case meets the necessary criteria for appeal.