A U.S. law that has protected workers from gender and racial bias for more than half a century shouldn’t be extended to cover gays and lesbians, Trump administration lawyers told a federal appeals court.

Congress didn’t have the LGBT community in mind when it passed the Civil Rights Act of 1964, and judges must interpret the law based on lawmakers’ intent, Justice Department attorney Hashim Mooppan said Tuesday.

"Employers under Title VII are permitted to consider employees’ out-of-work sexual conduct," he said.

The argument, before a rare full panel of the U.S. Court of Appeals for the Second Circuit in Manhattan, comes in one of a handful of employment-discrimination cases that may eventually reach the U.S. Supreme Court. Twenty states protect gay and lesbian workers from bias, and a ruling favorable to the plaintiffs in that court could extend such protections nationwide.

The plaintiff, the estate of former skydiving instructor Donald Zarda, argues that Title VII of the Civil Rights Act, which prohibits employers from discriminating on the basis of sex, race, color, national origin and religion, should be interpreted to cover sexual orientation as well.

They argue, for example, that a male worker who is fired for being attracted to men is confronting discrimination based on his sex, because he would not have been fired if he were a female attracted to men.

False Comparison

The Justice Department said that’s a false comparison because companies that fire workers over their sexual orientation would presumably do so whether they are male or female.

“Gay men and women are treated the same, and straight men and women are treated the same,” the Justice Department said in court documents.

The administration’s stance challenges a group of 50 companies and organizations -- including Microsoft Corp., Alphabet Inc.’s Google and Viacom Inc. -- that filed documents in June arguing discrimination based on sexual orientation should be illegal. A federal appeals court in Chicago in April ruled in favor of a fired worker in a similar case.

The case highlights the cultural shift in Washington after President Donald Trump’s election and spurred an unusual split between government agencies. The Justice Department intervened on behalf of the employer and the Equal Employment Opportunity Commission backed the plaintiff.

‘Sparse Wording’

The Zarda estate’s lawyer, Gregory Antollino, acknowledges that gays and lesbians may not have been the intended beneficiaries of the Civil Rights Act, but says Title VII was such a bare-bones provision that it’s open to a fair interpretation. Zarda, who sued in 2010, died in a base-jumping accident in Switzerland in 2014.

"Probably no members of Congress in 1964 were thinking about gay people, but neither were they thinking about how courts would interpret the sparse wording of Title VII in 50 years," Antollino said in a court filing.

Precedent is on the employer’s side, with most federal appeals courts ruling against extending Title VII to cover sexual orientation, said Sharon Stiller, an employment lawyer in Rochester, New York, who isn’t involved in the case.

"If we continue revisiting precedent through modern eyes, then doesn’t that destroy precedent?" she said in a phone call.

In March, an appeals panel in Georgia rejected a security officer’s sex-discrimination claim, saying the argument should be pressed before Congress, not the courtsd.

The government is backed in the case by the National Association of Evangelicals, which argued that the appeals court shouldn’t even consider the case because the states covered by the Second Circuit already have workplace protections for gays and lesbians. Corporations are largely addressing the issue on their own, without government intervention, the group added.

"Market forces are rapidly driving major employers to adopt such anti-discrimination policies even where not required by law," the group said. "It cannot be healthy for the judiciary to permit itself to be reduced to -- and seen as -- a mere tell-tale for the prevailing cultural winds, at the expense of the rule of law."

A panel of three appeals court judges ruled against Zarda in April, before he was granted the re-hearing before the full appeals court.

This article was provided by Bloomberg News.