Chaos broke out in the Court of Appeal on Tuesday as the court dismissed Enoch Burke’s appeal and the Burke family were physically removed from the court by gardaí.
Enoch Burke's challenge to set aside High Court orders directing him to stay away from Wilson Hospital's School following his paid suspension from his teaching post was dismissed.
However, before the President of the appeal court Mr Justice George Birmingham was able to read out the decision of the three-judge court, he was interrupted by shouting and roaring by members of the Burke family, who strongly criticised findings made by the court.
The Burkes – Enoch, his sister Ammi, parents Sean and Martina and brothers Isaac and Simeon – were all physically removed by gardaí in what were unprecedented and chaotic scenes before a courtroom full of members of the public, including several secondary school students.
Berated the court
Despite being warned to desist, following a brief adjournment of the proceedings, the Burke family continued to verbally berate the court accusing it of "bowing to transgenderism" and worshipping "on the altar of transgenderism."
In light of the persistent interruptions, the court rose 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 members of An Garda Síochána.
The family, who became animated over a finding by the court, continued to berate the judges, calling them "a disgrace", accusing them of breaching the Burke's constitutional rights.
They refused to leave the court despite being directed to do so by gardaí.
The gardaí were told by the Burkes they had "no right" to remove any of the family members from a public courtroom.
After several warnings were not complied with, gardaí attempted to physically remove the Burkes from the court. This resulted in angry scenes, before the Burkes were taken outside by the dozen or so gardaí present in the environs of the courtroom.
One person was arrested by gardaí after the family was removed from the courtroom.
Judgement
Three judgements were handed down by the CoA dismissing Mr Burke’s appeal.
In his judgement, Mr Justice George Birmingham said 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 appeal.
The judge also said the position of the child at the school, who wished to transition, and the school's response to this request were factors that the court 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.
Mr Justice Bermingham added that the Coirt of Appeal 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 also expressed her concern about the welfare of the student in the school who wished to transition.
"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, Mr Burke’s proposed conduct could be expected to influence the behaviour of other children towards the student in question also.
Untenable stance
Mr Burke’s stance to the Court of Appeal 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," the judge said.
The school could not countenance a risk that the student would be subjected to discriminatory behaviour, the judge added.
The judge said 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 his judgement Mr Justice Edwards said 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."
The appeal, he said, was about whether the temporary injunctions were properly granted by the High Court.
Mr Justice Edwards said he was in total agreement with the other judges of the court and said the decisions of the High Court made in this case were correct.
While it was accepted that Mr Burke has deeply held religious beliefs, including that a person's gender is assigned to them by God at conception, the judge said 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.
Previous incarceration
Mr Burke had 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 midterm 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 using pronoun 'they.'
Representing himself, Mr Burke had argued in the appeal that injunctions made by Ms Justice Siobhan Stack and Mr Justice Max Barrett against him last September 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.
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.
