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Members of the Burke family: Simeon, Seán, Enoch, Martina, Isaac, Ammi Sam Boal
Enoch Burke

Judge in Burke appeal case says wishes of student and their parents 'must prevail'

The full judgment was never read out in court, due to an interruption and physical altercation involving gardaí.

THE CHAOTIC SCENES that took place in the Court of Appeal Courtroom 1 yesterday meant that Justice George Birmingham never actually read out the full judgment in the case of Enoch Burke’s appeal.

Burke had been appealing a court order stemming from his dismissal from his role as a teacher at Wilson’s Hospital School in Westmeath. Following that dismissal, Burke had continued to present himself at the school, resulting in a court order that directed him to pay a fine of €700 for every day that he arrived at the school until the matter was resolved.

A panel of three judges dismissed the appeal in a 32-page judgment, that was published online after interruptions from the Burke family that caused them to be physically removed from the court by around a dozen gardai. 

One member of the Burke family has since been arrested and was remanded in custody. Simeon Burke, Enoch’s younger brother, further refused to sign a bail bond on a charge in connection with the courtroom incident. 

The language of the judgment itself was striking. In particular, President of the Court of Appeals Justice George Birmingham made clear his disagreement with some of the foundational arguments underpinning Burke’s core claims. 

In a forthright opinion, Justice Birmingham wrote: “I am of the view this case is not about what the appellant has chosen to describe as ‘transgenderism’, and I would prefer to express my views in terms of the fact that the case is not about transgender rights.

I cannot but believe that the term, as used by the appellant, is a somewhat pejorative one, as is his use of the term transgender “ideology”. These are phrases I prefer to avoid; I do not believe they are phrases that in today’s Ireland would find favour with transgender individuals and I would wish to respect their preferences in that regard.”

In other words, the court rejected the idea, which has been repeated by certain media outlets, that issues pertaining to transgender identity are at the heart of the case. 

Chief among the cries from the Burke family during their intercession into yesterday’s legal proceedings was the claim that the court was “bowing prostrate before the altar of transgenderism”.

The dispute at the outset of Burke’s eventual dismissal came after a child, with the supports of their parents, declared an intention to transition, as well as an intention to go by a new name and new pronouns. When the school sent an all-staff memo in support of the child, Burke voiced his dissent.

To this point, Birmingham wrote:

With parental support, the child indicated a desire to transition. In those circumstances, while it is not inconceivable that an accommodation satisfactory to all could have been reached, given goodwill and flexibility on all sides, it would seem at this stage, given the attitude taken by the appellant, that it is not possible to meet simultaneously the desires of the child and the parents, on the one hand, and the appellant’s concerns, on the other.

“If that is the choice – and I am afraid that, by reason of the appellant’s actions, it may well have in fact come to that – I would be of the view that the wishes of the child and parents must prevail.”

Reflecting more broadly on the position of the school, the court was supportive.

Birmingham wrote: “It seems to me that the approach of the school is very much in accordance with wider public policy as articulated in legislation such as the Gender Recognition Act 2015. That Act is not directly applicable in the circumstances of this case, as the pupil involved, being under 18 years of age, has not applied for and is not in a position to apply for a gender recognition certificate.

“However, it is part of the statute law of the State, and is, to a degree, I believe, declaratory of public policy… Against the background of the statute law of the State, it seems clear to me that the decision of the principal and of the school is in no sense an outlier.”

The judgment can be read in full here.

A related dispute between Burke and the school, challenging the legitimacy of Burke’s termination, will be heard in court at a later date. 

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