From today’s ruling by Judge Loren AliKhan (D.D.C.) in Jansen v. Trump:
On the opening day of his second term, President Donald J. Trump issued an Executive Order stating that it is the policy of the United States to acknowledge two fixed sexes, male and female, which are not subject to change. The order directs that government-issued identification documents, including passports and Global Entry cards, “accurately reflect the holder’s sex” based on the individual’s reproductive anatomy “at conception.” In line with this directive, the U.S. Department of State and U.S. Customs and Border Protection (a branch of the Department of Homeland Security) now require that sex markers on passports and Global Entry cards reflect the sex designated at birth.
Ms. Jansen is an intersex, post-operative transgender woman in her fifties. She was born with sex chromosome mosaicism, an intersex condition in which each cell carries a different combination of sex chromosomes, such as XX, XY, and XXXY. At birth, her sex was recorded as male on her birth certificate, even though she was born with underdeveloped external male genitalia and testes that do not produce sperm.
Ms. Jansen learned of her mosaicism as a teenager, after which she began living all aspects of her life as a woman. In the 1990s, Ms. Jansen successfully petitioned to change the sex on both her birth certificate and her Social Security records to female. Her state of residence also updated the sex designation on her driver’s license from male to female “in the belief that the male designation was a clerical error.” Also in the 1990s, Ms. Jansen underwent surgery in the United Kingdom to align her physical anatomy with her female sex. She has been on hormone therapy since around that time. Ms. Jansen has lived as a woman for more than thirty years, and while those close to her know that she is intersex and transgender, “people in her community are not.” …
The court finds that Ms. Jansen has not carried her burden of demonstrating irreparable harm in the absence of a provisional remedy, which suffices to deny her request for a preliminary injunction…. [T]he parties agree that Ms. Jansen presently holds a valid passport bearing a sex marker that matches her lived sex, and that passport remains valid until its stated expiration date, which is 2032. Because the State Department’s policy provides that passports stay valid through their expiration dates, Ms. Jansen is not at an immediate risk of harms from carrying a passport that lists a male sex marker….
By contrast, Ms. Jansen’s Global Entry card is currently eligible for renewal and would expire in November 2026. Ms. Jansen contends that she has not pursued renewal out of concern that she would be required to have a male designation on a new card…. Ms. Jansen does not dispute that the Global Entry card is a “benefit” and that “she need only carry the card for certain participation purposes,” but she argues that the government’s discriminatory denial of this benefit “puts [her] to a Hobson’s choice: endure the embarrassment of losing access to this benefit because she refused to be labeled as something she is not, or endure the embarrassment of being outed and branded as male.”
While the court agrees with Ms. Jansen that the government “cannot deny a benefit on a discriminatory basis,” Ms. Jansen has not shown that she is likely to face imminently and irreparably harm from no longer using her Global Entry card. First, a Global Entry card is not required to enter the United States; rather, membership in the program provides expedited processing at airports, land borders, and seaports. Ms. Jansen has not alleged any plans for international travel. And even if she had, she would merely lose the opportunity for expedited processing, which does not meet the heightened standard for irreparable injury….
Because the court concludes that Ms. Jansen has failed to establish irreparable harm warranting relief, it need not address the remaining prerequisites for a preliminary injunction—most notably, her likelihood of success on the merits. The court regards this approach as prudent given the extensive debate in the briefs and at the hearing about the Supreme Court’s order staying a class-wide preliminary injunction of the Passport Policy in Trump v. Orr (2025).
In Orr, the Supreme Court held, on the limited record before it, that the plaintiffs, who were transgender, were unlikely to prevail on the merits of their claims that displaying their sex at birth on their passports violated “equal protection principles” or was arbitrary and capricious, and that the government would suffer “a form of irreparable injury” if a stay were not issued. The Court explained that its interim orders are not definitive on the merits but rather illuminate how a court should exercise equitable discretion in similar cases.
Ms. Jansen argues that Orr is distinguishable because it does not involve intersex plaintiffs like herself. The court remains somewhat doubtful that Ms. Jansen’s intersex identity sufficiently differentiates her suit from Orr to avoid the Supreme Court’s conclusion that “displaying passport holders’ sex at birth … merely attests to a historical fact without subjecting anyone to differential treatment.” Like the plaintiffs in Orr, Ms. Jansen seeks to maintain identification documents bearing a female marker in line with her lived sex and appearance; she does not advocate adding a third sex marker for non-binary and intersex people (such as “X” under the former State Department policy). Consequently, she appears to challenge the same policy addressed in Orr—that sex markers must correspond to the sex assigned at birth. The court, however, need not resolve this issue at the present stage of the litigation.
Johnny Hillary Walker, III represents the government.
