About this case:

• Citation:
  [2023] IECA 52
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice George Birmingham

Ms Justice Máire Whelan and Mr Justice John Edwards also delivered supplemental judgments in which they agreed with the President that the case was not about transgender rights or Mr Burke’s religion. Instead, the appeal was solely concerned with whether the interim/interlocutory relief provided by the High Court was appropriate.

Ms Justice Whelan also outlined that Mr Burke had never suggested any solutions to the problem and could not clarify how he planned to address the transitioning pupil. This engaged issues of student welfare which the school was entitled to be concerned about, she said.

Further, Mr Justice Edwards traced the history of transgender recognition in Ireland and held that it was not surprising for the school to accommodate a transitioning student having regard to statutory principles of inclusion and equality.

Background

Mr Burke was suspended from his duties as a teacher at Wilson’s Hospital School following several incidents in which he expressed his opposition to referring to a transgender student as “they/them” rather than their previous pronouns. The incidents allegedly included Mr Burke raising his concerns at a staff meeting, interrupting a large religious ceremony to outline his views and raising the matter with the school principal at a dinner.

The school maintained that Mr Burke’s behaviour was highly inappropriate and disciplinary proceedings were initiated. The proceedings were known as stage 4 proceedings which could result in Mr Burke’s dismissal. In order for the disciplinary proceedings to conclude, Mr Burke was suspended on full pay.

Mr Burke continued to attend the school notwithstanding his suspension. On 30 August 2022, the school applied to Ms Justice Siobhán Stack for an interim injunction restraining Mr Burke from attending the premises. On 7 September 2022, Mr Justice Max Barrett made an interlocutory order restraining Mr Burke from attending the school pending the determination of the disciplinary proceedings.

Mr Burke also issued his own application for interlocutory relief, seeking to halt the disciplinary process and overturn his suspension. Mr Justice Conor Dignam accepted certain undertakings from the school about conducting a disciplinary hearing but made no order to halt the process or void the suspension.

Finally, Ms Justice Eileen Roberts heard another application from Mr Burke seeking to overturn his suspension, but this application was refused for similar reasons outlined by Mr Justice Barrett.

Mr Burke appealed the decisions of Ms Justice Stack and Mr Justice Barrett to the Court of Appeal. While he did not appeal the decisions of Mr Justice Dignam or Ms Justice Roberts, he requested the court to review these decisions.

Court of Appeal

Mr Justice Birmingham began by outlining the full factual background to the proceedings. In assessing the correctness of the approach of Ms Justice Stack, the court held that it was clear the trial judge had considered all the relevant papers and had been alive to the issues in the case. Although the hearing was brief, the court was satisfied that Ms Justice Stack had not made any errors in her judgment for interim relief. In fact, it was said that it was “inconceivable that any judge would not have concluded that this was a case for an interim injunction”.

Turning to consider the decision of Mr Justice Barrett (which was the main focus of the appeal), the court said that the trial judge had engaged with all the necessary elements of the test for an interlocutory injunction. This included a fair question to be tried, the adequacy of damages and the balance of convenience.

Again, the court held that there was nothing problematic about the relatively brief decision given by Mr Justice Barrett. Different considerations regarding the length of a judgment applied when a court was in a position to deliver a ruling immediately following oral argument, the court said.

The court accepted the point that suspension was a serious matter and should not be imposed lightly, but it may be justified to prevent repeated inappropriate conduct (see Bank of Ireland v. Reilly [2015] IEHC 241).

It was noted that, when addressing Mr Justice Barrett, Mr Burk engaged in rhetoric “that would not have been out of place at a public meeting or a political rally”. Further, Mr Burke asserted that the case was about accepting “transgenderism” in violating of his conscience which was an “abomination to the Christian faith”.

Ultimately, the decision of Mr Justice Barrett (and to a lesser extent, Ms Justice Roberts) involved identifying where the balance of convenience lay between the impact of the suspension on Mr Burke and the impact of his failure to stay away from the school while on paid administrative leave.

Although the impact of suspension in employment cases could be “very grave indeed” and not easily remedied, this was a case in which everyone in the educational sector would be aware of the background to the suspension, the court said.

It was noted that Mr Burke had shown that he intended to conduct himself in a similar manner which gave rise to the suspension, believing his actions to be worthy of commendation. This was a necessary consideration in granting the injunction.

Mr Justice Birmingham also outlined that the transitioning student’s position had to be considered in the case. The child, with their parents, had made a decision to transition and the school was presented with a choice to accept or reject the child’s decision. The school authorities decided that the student would be facilitated having regard to the school’s ethos of inclusion.

This approach was not at all surprising, the court said. It was in accordance with the wider policy regarding transgender legislation which, although not directly relevant, was indicative of public policy. As such, the decision of the school was “in no sense an outlier”.

Further judgments

Ms Justice Whelan and Mr Justice Edwards also delivered supplemental judgments in the case. Both judges agreed that the matter was not about transgender rights and was instead about whether the law had been properly applied in making the injunction orders. In that regard, both judges agreed that Mr Burke’s appeal should be dismissed.

Ms Justice Whelan outlined the ethos of the school, which included the concepts of inclusivity, affirmation and pluralism of thought. It was also noted that both the school and Mr Burke acted in loco parentis during school hours. As such, it was imperative for the school to ascertain how Mr Burke planned on engaging with the student.

While Mr Burke maintained in the appeal that all teachers had contact with students, he could not provide a direct answer on how he would refer to the student in question. He also claimed in oral argument that there was no issue of imminent interaction with the child, which “entirely inconsistent” with his general position.

The school had a “real and immediate need” to know how Mr Burke intended to address the student and it was “simply untenable” for Mr Burke to say that this information was irrelevant. It was incumbent on the school to ensure that no conduct or omission could cause harm to the pupil, the court said.

The failure by Mr Burke to address this issue led to uncertainty and justified the serious concerns of the school. It also appeared that Mr Burke acted at the chapel service in a way to cause maximum embarrassment and stress to the school principal in front of key stakeholders.

He appeared to “lack all insight” into his inappropriate conduct, even if his own version of events were taken to be correct. The school “could not reasonably countenance the risk that a student would be exposed to harm in respect of their social and personal development” contrary to statutory obligations.

Considering Mr Burke’s arguments regarding freedom of religion, the court rejected Mr Burke’s view that the law automatically protected the substance or content of any belief system. This was especially so where the belief was “calculated to deny, diminish or even destroy the personal and fundamental rights of another”.

Mr Justice Edwards outlined the history of transgender recognition in Ireland in order to show that the school’s support of the student was “hardly surprising”. The court emphasised the school’s stated policy of inclusion in this regard.

The court also considered Mr Burke’s conscientious objection to recognising transgender individuals, stating that such objections had to be taken seriously. However, nobody had a monopoly on rights and freedom of conscience and expression were not unqualified.

Ordinarily, it was appropriate for parties to engage with a view to accommodating conscientious objections. It was “lamentable” that this did not appear to occur in the present case, particularly as Mr Burke did not show any willingness to explore possible accommodation.

The school’s support of a transitioning student did not necessarily engage Mr Burke’s rights and any determination would be dependent on the evidence. The present appeal was not about such issues, with the court noting that Mr Burke had not made any positive pleading that his constitutional rights had been breached in the interlocutory proceedings.

Conclusion

Each of the judges upheld the decisions of the High Court and Mr Burke’s appeal was dismissed.

The Board of Management of Wilson’s Hospital School v. Burke [2023] IECA 52