Jailed school teacher Enoch Burke is to argue before the High Court he has been subject to “an egregious miscarriage of justice”.
In seeking a stay on proceedings brought against him by the Co Westmeath school employing him, he will claim he has been unconstitutionally and unlawfully subject to a disciplinary process for the expression of his religious belief.
He wants a stay on the proceedings taken against him by Wilson Hospital School in Multyfarnham over his failure to comply with court orders requiring him to stay away from, and not teach at, the school, which suspended him on full pay last August pending disciplinary proceedings.
The disciplinary proceedings were initiated on foot of a report compiled by its then principal concerning Mr Burke’s publicly voiced opposition, at a school event last June, to her request that teachers refer to a transitioning student by their preferred name and using the pronoun “they”.
In that report, the principal said she had “serious concerns about how Mr Burke may act in the school in future where he has stated his personal views on transgenderism in school and at a public event after the school term had ended”.
“These concerns extend to the student concerned and the entire student body,” the report stated.
After Mr Burke was placed on paid administrative leave in August, he continued to attend at the school. It then obtained court orders restraining him doing so and, when he continued to attend, secured further orders in early September jailing him for contempt.
Mr Burke has appealed the orders, and is also appealing the court’s refusal of his own application concerning the legality of his “enforced suspension”. His appeal is listed for hearing before the Court of Appeal on February 16th.
He wants a stay on any hearing of the proceedings between the school and himself until his appeal is determined.
Mr Justice Brian O’Moore said earlier this month he would case manage those proceedings and expressed the view they should, in the interests of Mr Burke and the school, be heard as soon as possible. He has made directions with a view to a hearing late this year or early next year.
When Ammi Burke, a solicitor, applied earlier this week for her brother to be produced urgently before the court to make the stay application, Mr Justice O’Moore said the school was entitled to adequate time to prepare for that and listed the matter on November 7th.
In his court papers seeking the stay, Mr Burke will argue that a number of High Court judges who have dealt with the case made “astonishing” orders in favour of the school.
He disputes a statement of September 7th by one judge, Mr Justice Max Barrett, that the case “is not about transgenderism”. He also disputes a statement by another judge, Ms Justice Eileen Roberts, that there “is no attack on the defendant’s beliefs by the suspension”.
Mr Burke contends the High Court orders have effectively nullified the constitutional guarantees of freedom of conscience, freedom or religion and freedom of expression.
It is “unthinkable”, he argues, that a full trial of the proceedings could take place against the backdrop of the alleged breaches of his rights, uncorrected by any appellate court.
He claims that “serious” errors of the High Court to date, unless corrected by the appeal court before the trial, will prejudice his fair trial rights.
On those and other grounds, he claims he is entitled to a stay on any hearing of the proceedings pending his appeal.