‘No give’ by Enoch Burke or school in impasse over how to address a transitioning student, court told

There was “no give” on teacher Enoch Burke’s part over how a school should deal with a request by a transitioning student and their parents to be addressed by their preferred name and using the pronoun “they”, the Court of Appeal (COA) has been told.

Mark Connaughton SC, for Wilson’s Hospital School, accepted he could not point to any “give” on the school’s part after Mr Burke, citing his religious belief, objected to a May 2022 direction by the then school principal asking teachers to respect the request.

Mr Burke declined “to engage at all” and the principal took exception to his behaviour at a school church service in June 2022 and at a dinner afterwards, counsel said.

“So both sides could be accused of butting heads; it does seem it escalated very quickly,” Mr Justice John Edwards remarked.

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Pressed by the three appeal court judges about what accommodation he was prepared to make in relation to the student, Mr Burke said a school “is not entitled to be more welcoming than the law permits”.

The principal’s direction was “manifestly unlawful” and breached his constitutional rights, including to freedom of expression and freedom of religious belief, he said. No suggestion was made there was a place for his Christian belief, he added.

When COA president Mr Justice Birmingham asked, “Where is the pupil in all this?” Mr Burke replied: “That is not the issue, the issue is the unlawful demand by the principal, that is where it has to begin, it is all about transgenderism.”

The COA heard Mr Burke’s appeal on Thursday against High Court injunctions of August and September last restraining his attendance at the school pending a disciplinary process.

After the appeal concluded, Mr Justice George Birmingham, presiding, said the court was reserving judgment and would deliver it as soon as possible. Mr Burke’s mother, Martina, sought to say something but the judge declined to hear her and the judges left the packed courtroom.

The disciplinary process was grounded on an August 2022 report by the then principal which addressed, among other things, Mr Burke’s publicly voiced opposition at the close of a school religious service in June 2022, and at a dinner afterwards, to her direction concerning the transitioning student.

Mr Burke was put on paid leave pending the process but, when he continued to attend the school, it obtained the injunctions. He was jailed over breach of those and released after 108 days without purging his contempt. After he resumed attending the school last month, the High Court directed he be fined €700 daily from January 27th until he purges his contempt. The fines reached almost €15,000 on Thursday.

At the outset of the appeal, Mr Justice Birmingham warned Mr Burke any “egregious” conduct by him before the court’s judgment may impact on delivery of that.

In submissions, Mr Burke argued the High Court orders are invalid. The August 2022 order demonstrated the High Court was an “injunction shop” and both orders failed to meet the legal test for such orders, he said.

In his submissions for the school, Mr Connaughton argued the High Court orders are valid.

Mr Burke had not engaged with the disciplinary process and was served with a notice of dismissal following a disciplinary hearing before the board of management last month, he said. The time to appeal that had not expired.

While “some tricky” issues arose from the principal’s report, the principal was not the decision-maker when it came to the disciplinary process, and her report “determines nothing”, counsel said.

A teacher can have their religious beliefs but is not entitled to behave unprofessionally, and a school is entitled to say “you cannot think you can behave like this and still work for us”, he said.