Donald Trump’s Department of Justice has appeared in a federal court to argue that employers should be able to fire people for being gay.

Skydiving company Altitude Express is being sued after a former instructor, Donald Zarda, alleged he was sacked in 2010 over his sexual orientation.

All 13 judges of the 2nd Circuit Court of Appeals in New York City are expected to decide if a provision of the 1964 Civil Rights Act that prevents discrimination based on gender also applies to sexual orientation, reports Vice News.

Hashim Mooppan, the Justice Department lawyer in the case, told the court: “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.”

Unusually, a separate government department was in court to argue against the DOJ. The Equal Employment Opportunity Commission argued that Title VII of the 1964 act did provide protection to gay employees.

Judges in the Second Circuit court appeared unimpressed by the DOJ’s entry in the case, with Judge Rosemary Pooler describing it as “a little bit awkward” for government agencies to be on opposing sides.

On being asked if the DOJ’s employment discrimination division had been consulted over the move, Mr Mooppann said it was “not appropriate” to comment.

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When Judge Gerard Lynch asked Mr Mooppan if it is “sort of OK” to discriminate based on someone’s gender, the lawyer said there are “real, physical” differences between men and women, reports Law.com.

He also told the court employers are allowed to fire workers for out-of-work conduct, such as promiscuity.

The appeal comes after a three-judge panel ruled against Zarda in April, stating that Title VII does not protect LBGTQ workers. However a landmark decision earlier in April at a US Court of Appeals for the Seventh Circuit ruled that the provision does cover sexual orientation.

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The case could ultimately make its way to the Supreme Court, where the government would be represented by the DOJ.