I don’t know to what extent the tedious case of Enoch Burke has been covered outside Ireland, or Irish circles. He is currently at the centre of a series of court cases surrounding his misconduct as a teacher at a school in central Ireland. Last May a pupil at the school came out as trans and requested the school to use a new name and they/them pronouns. Burke – who did not actually teach any classes including the child in question – wrote to the principal of the school saying that he was not prepared to do so, spoke angrily about the issue at a staff meeting and then disrupted a school religious service by heckling the principal and the local bishop in front of the pupils.

The school suspended him as a teacher and and then fired him, on the grounds of misconduct, but he continued to turn up to the school demanding to be allowed inside to continue teaching. The police and court system got involved; he continued to defy court orders to tell him to stay away from the school and ended up in prison for contempt of court for several weeks before Christmas. After he was formally fired in January, he continued turning up at the school, and was arrested when he went inside. The court has now imposed a fine of €700 per day for each day he turns up at the school premises; he now owes the school over €24,000.

The usual suspects are trying to make a case that this crazy bigot who refuses to give assurances that he will not harass a child who is going through a difficult phase of their life, disrupted a religious service, attempted to intimidate his colleagues and their pupils and has repeatedly defied the law, is in fact a heroic martyr for the cause of free speech and standing up for the principle that biological sex is real. Although it should be noted that Fred Phelps Jr of the Westboro Baptist Church thinks he has ‘gone too far’, which is a line you won’t see often.

I read with interest the rulings of three judges on the Court of Appeal who threw out Burke’s attempt to overturn the previous judgements against him on 7 March. (The Burke family disrupted the Court of Appeal session and had to be removed by police. Since then, Burke lost another case last week.) The three judges take somewhat different routes to arrive at the same conclusion.

The most interesting judgement is from Justice John A. Edwards. You can read it in full here. He goes in some detail into the history of Irish legislation on recognising gender transition, particularly the Foy case, which I wasn’t really aware of. He then looks at cases of people taking controversial stances of conscience, including (rather to my delight) Eric Liddell in Chariots of Fire. He makes this important point:

Conscientious objections are to be taken seriously. Beliefs sincerely held are to be respected, whether they be on social or religious or other principled grounds. All the more so, where the beliefs on which the objection is founded, and the right to express them, are supported by personal rights guaranteed to the citizen under the Constitution, and perhaps also under international instruments. However, nobody has a monopoly on rights and rights such as freedom of conscience, the right to free profession and practice of religious belief, and freedom of expression are not wholly unqualified rights. Further, those rights may intersect with the same or other rights, arising under the Constitution or otherwise, of others who do not share their beliefs.

If you are in the mood for it, the two other rulings bear reading too. The President of the Court of Appeal, George Birmingham (who in a previous life was Ireland’s first ever Minister of State for EU Affairs, back in 1986), mainly looks at the legal technicalities (because the Court was looking at alleged failures of procedure, according to the Burkes, in the previous court rulings). You can read his judgement here. But he too makes some very important points of wider application. I was struck by this at the end:

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. The long title of the Act is that it is “An Act to recognise change of gender; to provide for gender recognition certificates; to amend the Irish Nationality and Citizenship Act 1956, the Civil Registration Act 2004, the Passports Act 2008 and the Adoption Act 2010; and to provide for matters connected therewith.” 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.

Isn’t it interesting that Ireland has come to the stage where recognising transgender people for who they are is seen by a 68-year-old senior judge as the default, and the behaviour of the Burkes is in every sense an outlier?

Finally, Justice Maire Whelan, formerly the second longest-serving attorney-general in the history of the Irish state, whose own appointment to the court in 2017 was somewhat controversial, weighs in on the school’s ethos and duties to its pupils, and Burke’s failure to respect either. One of the points of interest of the case is that the school is actually a Protestant school by background, run by the Church of Ireland. The village where the school is located has a total population of less than 200, and only 2% of the 95,000 population of the whole of County Westmeath identify as Church of Ireland, so it seems likely that the school takes in pupils of other faiths and none. (My research, not Justice Whelan’s.) Justice Whelan looks at the role and responsibilities of the school and of Enoch Burke, and comes down very firmly on the side of the school.

Contrary to Mr. Burke’s contentions the safety, health and welfare of the individual student is of central importance in this case. In was incumbent upon the school to ensure that a parental 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.  As stated above, both the school and Mr. Burke stood in loco parentis to the student. It was incumbent upon the school to ensure that no conduct, by act or omission, as might cause harm or be potentially discriminatory or that could impact detrimentally upon the student in question or the student body would be engaged in…

Leaving aside all legislation, the school and its Board had continuing and significant common law obligations towards children in respect of which it stood in loco parentis.  Mr. Burke himself had – and continues to have – like obligations at law… 

Further parents and students were entitled to expect that no individual student would be at risk of less favourable treatment than their peers, of being left vulnerable to discrimination, of not being accorded or treated equally with other students in terms of their human dignity by virtue of the potential conduct of a teacher in the school.  The school having adopted its mission statement and statement of ethos as it was required to do by statute was bound by its terms.  Not alone was it not open to the school, by omission, to resile from its obligations but, in my view, it had a positive duty to defend and vindicate the school policy in circumstances where a clear risk had been identified in the conduct of Mr Burke which was capable of visiting discrimination and/or impacting detrimentally on the welfare of the student body in general and the individual student in particular. That was particularly important where the school was one which in the very words of Mr Burke “ all teachers have interaction with all pupils”.

It is powerful stuff. Apparently several St Patrick’s Day parades yesterday featured floats mocking Burke’s removal from the school and the High Court by Gardaí, to cheers from the crowds. Ireland has changed.

(Though I hope that the student is getting the necessary support from their family and community. They did not pick this fight, and just want to live life as their own self.)