Violence in Court as Enoch Burke loses appeal to stay away from midlands school in Transgendarism case

There were angry and chaotic scenes at the Court of Appeal following the dismissal of Enoch Burke's application to set aside orders directing him to stay away from Wilson Hospital's school following his paid suspension from his teaching post.

Before the President of the CoA Mr Justice George Birmingham finished reading out his judgement the court was interrupted by shouting and roaring by members of the Burke family, who strongly criticised findings made by the court.

Enoch Burke along with his sister Ammi, parents Sean and Martina and brothers Isaac and Simeon were all physically removed by Gardai in what were violent and chaotic scenes before a courtroom full of lawyers as well as members of the public including several secondary school students.

The family became particularly animated when Mr Justice Birmingham stated that the court agreed with the findings made in the High Court by Mr Justice Max Barrett last September that the application by Wilson's Hospital school for an injunction against Enoch Burke was not about "Transgendarism."

This resulted in first Ammi Burke voicing her opposition to the court's finding calling it "totally incorrect", before other members of the family also loudly voiced their discontent.

Despite being warned to desist, following a brief adjournment of the proceedings, by Mr Justice Birmingham, the Burke family continued to verbally berate the judges accusing them of "bowing to Transgendarism" acting in breach of the constitution and of worshipping "on the altar of Transgendarism."

In light of the persistent interruptions the court rose for the day and said it would deliver its decision by electronic means.

However, the Burke family then refused to comply with a direction to vacate the courtroom by gardaí and continued to roar and shout. The family continued to berate the judges calling them "a disgrace", accusing them of breaching the Burke's constitutional rights.

The gardaí were told by the Burkes they had "no right" to remove any of the family members from a public courtroom and accused the officers of lacking respect.

After several warnings to leave were not complied with, the gardai physically removed the Burkes from the courtroom.

This resulted in violent, chaotic and angry scenes, which lasted several minutes before all of the Burkes were eventually taken out of the court by the dozen or so gardaí present in the environs of the courtroom.

Ammi Burke was the first member of the family to be physically taken out of the room by the gardaí.

Gardaí then attempted to remove Martina Burke, which seemed to further incense the Burkes, and intensified the situation.
Martina, Sean and Simeon Burke, who all physically opposed attempts to move them on, were then all physically removed by the Gardaí.  

 During the exchange Enoch Burke attempt to grab one of the court benches before he was carried out by gardaí, while his brother Isaac sat down on the floor, before he was eventually dragged out by uniformed gardaí.

In its judgement which was furnished after the court was cleared on Tuesday afternoon the three judge CoA comprised of the President of the CoA Mr Justice Bermingham, Ms Justice Marie Whelan and Mr Justice John Edwards unanimously rejected all grounds of the teacher's appeal.

The injunctions granted against him, which are to remain in place pending the determination of the action between the school and the Co Mayo native, were validly made and are lawful the CoA found.

Mr Justice Birmingham said that Mr Burke's criticisms of the decisions made by the judges of the High Court had not been made out, and therefore he was satisfied to dismiss the appeals.

The Judge also said that the position of the child at the school, who wished to transition, and the school's response to this request were factors that the CoA needed to take into account.

The school he said had acted in accordance with the 2015 Gender Recognition Act, when considering the wishes of the pupil and their family.

The President added that the CoA also agreed with Ms Justice Eileen Roberts finding in the High Court that the making of the injunction was not an attack on Mr Burke's religious rights.

In her judgement Ms Justice Marie Whelan said 

In her judgement Ms Justice Whelan also expressed her concern about the welfare of the student in the school who wished to transition.

She said Mr Burke's refusal to disclose how he proposed to interface with the student concerned or what he proposed to do and in circumstances where he had communicated a clear intention not to comply with the school's requests concerning appropriate social interaction with the student in the school.

This state of affairs arose not because of Mr Burke’s religion but because his said conduct was potentially untenable insofar as the uncertainty created by his refusal to identify his proposed course of action presented the school with a risk of "potential discrimination" towards an individual student.

"The school had a real and immediate need to know how Mr Burke intended to engage with the student, to communicate with the student and to behave towards the affected student," she said.

Given his position within the school his proposed conduct could be expected to influence the behaviour of other children towards the student in question also.

Mr Burke’s stance to the CoA that this information was of “...no relevance was simply untenable, she said.

"Contrary to Mr Burke’s contentions the safety, health and welfare of the individual student is of central importance in this case." she said.

The school had to ensure that request that respect be afforded by the school for the diversity arising should be accommodated in accordance with the school’s own Admission Statement and characteristic spirit, the judge added.

The school could not countenance a risk that the student would be subjected to discriminatory behaviour, the judge added.

The judge added that the Constitution requires the courts to pay every respect to the individual’s right to hold and subscribe to religious principles.

"There is however a significant distinction to be drawn between the Constitution’s protection of individual freedom of conscience and the free profession and practice of religion," she said.

"We live in a free and democratic society." the Judge said.

In the administration of justice courts must maintain an essentially neutral view of religious beliefs nor is a court entitled to maintain a stance with regard to the core tenets or doctrinal values inherent in any particular religion.

"In general, each religion is entitled to equal respect. The courts have no function in adjudicating as to whether a particular tenet is or is not encompassed in any particular faith and citing a 2009 finding of the UK's Supreme Court added that “It has long been understood that it is not the business of the courts to intervene in matters of religion."

In his judgement Mr Justice Edwards said that the appeal "is not fundamentally about transgender people, or issues of gender identity, nor is it fundamentally about Mr Burke's constitutional rights to freedom of expression, freedom of conscious and the right to free profession and practice of his religion."

This was not to say such issues are not important, and they "form the backcloth to the present proceedings." But no more than that, the judge added.

The appeal he said was about if the temporary injunctions were properly granted by the High Court.

Mr Justice Edwards said that he was in total agreement with the other judges of the court and said that the decisions of the High Court made in this case were correct.

While it is accepted that Mr Burke has deeply held religious beliefs, including that a person's gender is assigned to them by God at conception.

However, the judge said that Mr Burke does not seem to accept or recognise that people can have a gender identity different to the gender that they were thought to have at birth. 

His views the judge added are not ones that are universally shared even among those with Christian belief," the judge added.  

Mr Burke claimed that the orders, which underpin a finding that he was in contempt of court resulting in his incarceration for 108 days, are unconstitutional, invalids and should be set aside.

His failure to stay away from the school, currently on mid-term break, following his release resulted in the High Court imposing a daily €700 fine until he purges his ongoing contempt.

He had appealed against orders made by judges of the High Court last September; in a case he claims centres around his objection to the school's direction to refer to a student at the Co Westmeath school by a different name and by using the pronoun 'they.'

Representing himself Mr Burke had argued in the appeal that the injunctions made by Ms Justice Siobhan Stack and Mr Justice Barrett against him were invalid and that the school had not made out a fair or strong case that would justify the granting of the orders against him.

He was also critical of decisions made by other judges including Ms Justice Roberts and Mr Justice Conor Dignam, when aspects of the dispute came before them.

The school argued that the orders granted against Mr Burke are valid, and that he had been suspended due to his alleged conduct at the school in incidents that occurred at a religious service and subsequent meal at the school last year and should remain undisturbed.

Earlier this year the school decided to dismiss Mr Burke from his employment.

That decision is being appealed.  

The full hearing of the legal dispute between Mr Burke and the school over his suspension is due to be heard by the High Court at a later date.