Trump’s Justice Department appeared in federal court Tuesday to argue that employers should be able to fire people because they are gay.
In a rare occurrence, all 13 judges of the 2nd Circuit Court of Appeals heard oral arguments in Zarda v. Altitude Express Tuesday. The case originated in 2010 when skydiving instructor Donald Zarda sued his former employer, Altitude Express, alleging he had been fired because of his sexual orientation.
The agency inserted itself, even though the federal Equal Employment Opportunity Commission had already sided with Zarda, arguing that LGBTQ employees are protected by Title VII of the landmark Civil Rights law.
That made the hearing odd, to say the least.
“It’s a little bit awkward for us to have the federal government on both sides of the case,” observed Judge Rosemary Pooler at one point in the oral arguments.
But Justice Department lawyer Hashim Mooppan pressed on anyway, opposing the EEOC, which was still run by an Obama administration holdover when the case first reached the court.
“Employers under Title VII are permitted to consider employees’ out-of-work sexual conduct,” Mooppan told the judges. “There is a common sense, intuitive difference between sex and sexual orientation.”
The lawyer for Zarda’s side disagreed in the most basic terms.
“(It’s) as conservative as it could possibly get: if having sex with a man is okay for a woman, it has to be okay for a man as well,” Greg Nevins of Lambda Legal, tells Newsweek. “You cannot apply a different rule based on gender, according to the law. Apparently, that wasn’t conservative enough for the DOJ.”