The Court of Appeal (Coa) has heard the appeal of Enoch Burke regarding an injunction taken against him by Wilson's Hospital School in Co Westmeath school, despite concerns about his contempt of court.
Mr Burke represented himself in court, and was accompanied by his sister, two brothers and parents, Martina and Sean.
The court agreed to hear Mr Burke’s appeal against High Court injunctions banning him from attending the school, despite concerns about whether he would continue to be in contempt of court.
Mr Burke has been seen on the grounds of the school over several days despite a court order banning him from doing so, and despite an order for him to be fined €700 for each day he attends the school in breach of the order.
Mr Burke argued that he has breached “no valid” court order, claiming the order was “manifestly unconstitutional and unlawful”.
On Thursday morning, the three-panel court said it had concerns about hearing an appeal if Mr Burke intended to continue to be in contempt, but decided to continue to hear the case.
President of the Court of Appeal, Justice George Birmingham, said it was “a matter of some importance” whether Mr Burke intended to continue his “ongoing” contempt by attending the school despite a High Court order against it.
He said that historically, when someone was in contempt, they did not have access to the courts unless they wanted to purge their contempt.
“Our concern is, you’re saying to this court, 'I want to invoke your jurisdiction',” the judge said, adding that the court was worried he would “pick and choose what orders of the court you abide by”.
“We’re very willing to embark on an appeal, notwithstanding what has concerned to date, but we have concerns as to what will happen in the future and we have concerns as to what will happen while the matter is before the court,” he said.
Judge Birmingham said the court “accepts fully” that someone in contempt has a right to appeal the finding that they are in contempt, if there is a factual or legal issue.
“They have of course a right to come before this court and no-one would argue otherwise,” he said, but he raised concerns about someone invoking the authority of the court but then not complying with its jurisdiction.
Mr Birmingham said the court would hear Mr Burke’s appeal against the decisions of High Court judges Ms Justice Siobhan Stack and Mr Justice Max Barrett, “notwithstanding the fact that we were unimpressed” that Mr Burke did not indicate whether he would continue to be in contempt of court.
In his appeal to the court, Mr Burke said he could not accept “transgenderism” due to his Christian beliefs, after teachers at the school were asked to address a student by “a new name and the ‘they’ pronoun”.
This was indicated in an email from the school principal sent in May 2022.
The German and history teacher also confirmed to the court that the student in question did not attend his classes, but argued that all teachers had some level of interaction with all students, either in corridors or acting as a substitute teacher.
Mr Justice Birmingham asked Mr Burke: “What were you offering by way of accommodation?”
Mr Burke responded that a demand had been “forcefully and clearly made” in the email and that was his “immediate concern”.
He said it was important for a teacher “to model the behaviour that you wish students to emulate”.
“That would extend to not participating or condoning unlawful requests. That is exactly what happened,” he said.
“(The email said) ‘It is expected of you’. There was no accommodation of me there judge, that is certain.”
When asked by Ms Justice Maire Whelan how he imagined interacting with the student in question, Mr Burke said: “The question before the court doesn’t involve that.”
When asked by Justice Birmingham whether Mr Burke’s position made it “an impossibility” for the school to welcome a request by the student and their parents, Mr Burke responded: “A school is not entitled to be more welcoming than the law permits.”
Mr Burke also argued that the Constitution “guarantees” a right to “respect and honour” religion.
“The only thing the State is bound to honour by the constitution is religion,” he told the court.
When asked by Justice John Edwards whether there was a more appropriate setting than at a religious service “to make a public spectacle and to confront the principal in the way in which she was confronted”, Mr Burke responded that “under no circumstances could it be portrayed as gross misconduct”.
The legal team for Wilson’s Hospital School told the court that “Mr Burke does not listen”. The court will hear their argument in the afternoon.
The CoA also heard that the school is on midterm holidays this week, and Mr Burke has not indicated whether he intends to continue to attend the school when term resumes next week.
