One of the issues at the heart of the Enoch Burke case is his assertion that Wilson Hospital School was forcing him, and other students at the school, to use the pronoun ‘they’ in relation to a student.
‘They/Them’ pronouns are generally used by transgender persons who do not identify as male or female, and are non-binary.
Emails between both parties included in the Court of Appeal’s ruling in the controversial case seem to confirm that Mr Burke was told that he, and others, were obliged to refer to the transgender pupil using the pronoun “they”.
It has been denied that Mr Burke was being ‘forced’ to use “they” pronouns but the correspondence referred to in the rulings suggest otherwise.
“On 9th May 2022, the then principal of the school (hereinafter the “principal”) issued an email to staff, including the appellant, informing staff members that a student in the school would, with the support of the student’s parents, be making a transition in their gender identity from the next day,” the Court of Appeal explained.
“The principal referred to the fact that, from then, the student would be known by a different name than had been the case heretofore, and that the pronoun “they” should be used, rather than the pronoun that had been used up to that point.”
The appellant took issue with the communication, and the following day, he emailed the principal as follows: “Can you confirm to me that parents of students in the school have been informed that their children will be told that one of their classmates is to be referred to as ‘they’ instead of [pronoun previously used] and that they must now approve this by referring to the student in this manner? Has the chaplain agreed to this? I am shocked that students in this school are being forced to accept this position.”
The principal replied to the email as follows:
“All due care has been taken. There is no agreement required from Chaplain.
There is no suggestion of ‘force’ by or for anyone involved.
If you are not willing to include [the child, referred to by name] in your classroom going further, please make an appointment to see me at our mutual convenience.On 18th May 2022, there was a meeting between the appellant, the principal, and the deputy principal to discuss matters, but the issue was not resolved.
On 27th May, the principal emailed the appellant, stating :“I am writing to you following on from the meeting last week (Wednesday [18th] May)regarding the request by a student and the student’s parents that the student be addressed as [new name] rather than [previous name] and that the identifying pronoun of they/their be used going forward.
I wish to clarify the approach of [the school] to such requests. The ethos of our school is inclusive and ensuring the welfare of students is paramount. As set out in the school’s Admission Policy, one of the core values of the school is ‘Caring: Focusing on the experience of the young person to ensure that their experience of their time in school is accepting, happy and positive’.
The school’s Admissions Policy includes an admission statement which affirms that the school shall not discriminate in its admission of a student on any of the discriminatory grounds set out in section 3 of the Equal Status Act 2000. Gender is one of the discriminatory grounds. Section 7(2) of the Act further provides that a school shall not discriminate on any of the grounds in relation to (b) the access of a student to any course, facility or benefit provided by the establishment and (c) any other term or condition of participation in the establishment by a student.
The right of persons to be called by a name of their choosing and in accordance with their preferred gender is a recognised right and a refusal to address persons by their preferred gender or new name has been held to constitute discrimination on the gender ground.
While I recognise that it may be challenging for you in light of your own religious beliefs, in view of the ethos of the school and the school’s obligations under the Equal Status Act 2000, I expect that you will communicate with this student in accordance with the wishes of the student and the student’s parents.”
Much has occurred since that email exchange, and the ruling will be the subject of many a legal article, but it seems to me that it is difficult to argue, given what was written to Mr Burke by the principal, that he was not being obliged – forced in his words – to use ‘they’ pronouns.
An employee that is told that something is “expected” of them, is in no doubt that a compulsion is being spelled out.
The Court of Appeal ruling touched on Burke’s view that the case was about transgenderism and compelled speech.
“I turn now to the observation by Barrett J. that this case was not about transgender issues, remarks echoed – or certainly, I suspect, in the mind of the appellant –by the remarks of RobertsJ., that there was no attack on the religious beliefs of the appellant,” the President of the Court, Justice Birmingham wrote.
“I am of the view this case is not about what the appellant has chosen to describe as “transgenderism”, and I would prefer to express my views in terms of the fact that the case is not about transgender rights. I cannot but believe that the term, as used by the appellant, is a somewhat pejorative one, as is his use of the term transgender “ideology”. These are phrases I prefer to avoid; I do not believe they are phrases that in today’s Ireland would find favour with transgender individuals and I would wish to respect their preferences in that regard.”
The Court also said that: “From the school’s perspective there was a self-evident need to establish a minimum threshold to protect and vindicate the human dignity of an individual student and the wishes and views of parents so as to ensure that the student would not be vulnerable to discrimination in terms of the respect to be afforded them and would not suffer less favourable treatment than other students and would not be at risk of exposure to potentially harmful or discriminatory treatment.
“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 [Section 9 (d) of the Education Act 1998],” it said
“Mr. Burke’s sustained and wilful refusal and neglect over time to disclose to the school how he proposed to communicate with the particular student from day to day posed such a risk,” Ms Justice Máire Whelan said in her judgement.
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