AP

Lawyers from the Department of Justice argued in court on Tuesday that employers should legally be allowed to fire people if they are gay. The case hinges upon whether Title VII of the 1964 Civil Rights Act, a clause that prohibits employment discrimination, covers sexual orientation. President Trump’s DOJ doesn’t seem to think it does.

After several legal challenges, Zarda v. Altitude Express was heard by all 13 judges of the Second Circuit Court of Appeals. At the center of the case is Donald Zarda, a former skydiving instructor, who sued Altitude Express, his former employer, alleging that the company fired him for being gay. (Zarda died in 2014 in a skydiving accident; his estate has taken over the case.)

Hashim Mooppan, the DOJ’s lawyer, told the Second Circuit judges: “Employers under Title VII are permitted to consider employees’ out-of-work sexual conduct. There is a common sense, intuitive difference between sex and sexual orientation.”

Why might the DOJ be involved in this case? It’s a good question. In July, the Jeff Sessions-helmed Justice Department decided to file a legal briefing that excluded sexual orientation from Title VII’s definition—for whatever reason.

Tuesday’s hearing was particularly unusual because it pitted two federal agencies against one another: the Equal Employment Opportunity Commission, an independent agency that enforces Title VII, and the DOJ. For nearly five years, the EEOC has argued that Title VII covers sexual orientation.

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“It’s a little bit awkward for us to have the federal government on both sides of the case,” said Judge Rosemary Pooler. When pressed on whether the DOJ had consulted the EEOC about the case, Mooppan replied, “It’s not appropriate for me to comment.”

There is conflicting precedent for Title VII’s protections. Perviously, a panel of three judges from the Second Court sided with Altitude Express, but a panel of 13 can overrule that decision. Separately, though, the Seventh Circuit Court of Appeals ruled in April that Title VII did protect gay people from discrimination, finding any other interpretation “confusing and contradictory.”

Zarda’s case could feasibly be heard by the Supreme Court, where another case the DOJ has curiously inserted itself into is about to be heard. In that case, Masterpiece Cake Shop v. Colorado Civil Rights Commission, Trump’s DOJ argued that a Colorado cake maker was protected by freedom of speech laws when it refused to bake a wedding cake for a gay couple.