WHEN the Supreme Court opened marriage laws to gays and lesbians nationwide in June 2015, Barack Obama celebrated by illuminating the White House in the rainbow colours of the gay pride flag. Two years later, such a gesture from the president seems inconceivable. On July 26th, Donald Trump tweeted that transgender soldiers would no longer be allowed to serve in America’s military. On the same day, the Department of Justice (DoJ) unexpectedly took a stance on a case in New York regarding employment discrimination based on sexual orientation. The nation’s civil-rights laws, it said, do not protect people against anti-gay bias in the workplace.

The case, Zarda v Altitude Express, involves a sky-diving instructor who says his sexual orientation cost him his job. In 2010, after Donald Zarda told a female customer he was gay—to lessen the awkwardness of being tightly strapped to her on a jump, he said—the woman’s husband complained to the company and Mr Zarda was fired. Mr Zarda died in a jumping accident in Switzerland before the case went to trial and has been replaced by estate executors as plaintiffs. Their argument is straightforward: in sacking Mr Zarda, Altitude Express violated Title VII of the Civil Rights Act of 1964, which outlaws discrimination among employees “because of sex”. In April, a three-judge panel of the Second Circuit rejected this claim, but in the autumn the full Second Circuit will revisit the issue.

Legal opinion on whether Title VII bars discrimination based on sexual orientation remains divided. In April, when the panel issued its preliminary Zarda ruling, the Seventh Circuit Court of Appeals came to a very different conclusion in a case involving a lesbian professor who says that her employer pushed her out of full-time job. For an 8-3 court in Hively v Ivy Tech Community College, Chief Judge Diane Wood wrote that only “considerable calisthenics” could “remove the ‘sex’ from ‘sexual orientation’”. Kimberly Hively's situation “is no different from the claims brought by women who were rejected for jobs in traditionally male workplaces, such as fire departments, construction and policing, where bosses were “policing the boundaries of what jobs or behaviours they found acceptable for a woman”. In a concurrence arguing that the 1964 law should be interpreted in light of radical changes in how society views homosexuality, Judge Richard Posner wrote, “I don’t see why firing a lesbian because she is in the subset of women who are lesbian should be thought any less a form of sex discrimination than firing a woman because she’s a woman”.

That, it seems, is the last word on Hively, as the community college said it would not appeal. But a similar case may be coming to the Supreme Court via an Eleventh Circuit case out of Georgia, Evans v Georgia Regional Hospital. In March, a three-judge panel ruled 2-1 that Jameka Evans, a lesbian security guard, had no cause for complaint for being “denied equal pay...harassed and physically assaulted” at the hospital where she worked. Title VII only bars discrimination between men and women, the pair of judges held in a curt opinion; it does not protect against mistreatment based on sexual orientation. Lambda Legal, a civil-rights group, is preparing a petition to the Supreme Court challenging the ruling. With the circuits split on whether Title VII entitles gays and lesbians to protection, the justices have good reason to take the case. Evans will likely lie in the hands of Anthony Kennedy, 81, author of four major gay-rights opinions and the perennial swing vote on an ideologically divided court.

The DoJ has remained on the sidelines for both Hively and Evans. This makes its intervention regarding Zarda conspicuous. The move is particularly curious because the Equal Employment Opportunity Commission, the federal agency policing claims of bias in the workplace, has held since 2015 that Title VII bars anti-gay discrimination. The DoJ’s foray into the question thus pits one arm of the executive branch against another.

What is the basis of the intervention? The brief reiterates the familiar argument that Congress has never amended the Civil Rights Act to cover sexual orientation explicitly. “Any efforts to amend Title VII’s scope should be directed to Congress”, the DoJ argues, “rather than the courts”. Using the example of gender-segregated employee bathrooms, the department also claims that “an employer does not engage in sex discrimination when it accounts for a sex-based difference without treating either sex worse than the other”.

This is precisely the position which the Supreme Court shot down 50 years ago in Loving v Virginia, a landmark decision overturning laws barring interracial marriage. Virginia and other states claimed that their bans on black-white mixing at the altar did not constitute racial discrimination because they applied equally to whites and blacks: both races were barred from marrying the other. Likewise, the DoJ says that anti-gay bias does not count as sex discrimination because it applies to men and women alike.

When the liberal-leaning Second Circuit hears Zarda again this autumn, the plaintiffs’ chances are strong. But ultimately, everything depends on how the Supreme Court sees the matter, should it decide to review Evans. But whatever further advances the justices make in the cause of equality, don’t expect any rainbow lights on the White House.