The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
No Preliminary Injunction Against Applying Birth Sex Policy to Intersex Plaintiff's Global Entry Card …
when plaintiff has passport that won't expire until 2032.
From today's decision by Judge Loren AliKhan (D.D.C.) in Jansen v. Trump:
On the first day of his second term, President Donald J. Trump issued an Executive Order declaring it "the policy of the United States to recognize two sexes, male and female," which "are not changeable." The Executive Order requires that government-issued identification documents, including passports and Global Entry cards, "accurately reflect the holder's sex" based on the individual's reproductive system "at conception." Pursuant to the Executive Order, the U.S. Department of State and U.S. Customs and Border Protection ("CBP"), a component of the U.S. Department of Homeland Security ("DHS"), now require that sex markers on passports and Global Entry cards reflect an individual's sex assigned at birth.
Ms. Jansen is an intersex, post-operative transgender woman in her fifties. She was born with sex chromosome mosaicism, an intersex condition where each of her cells has a different combination of sex chromosomes, such as XX, XY, and XXXY. When Ms. Jansen was born, her sex was assigned as male on her birth certificate even though she was born with underdeveloped external male reproductive organs and testes that do not produce sperm.
Ms. Jansen learned that she had 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 her birth certificate and in her Social Security records to female. Her state of residence also changed 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 over thirty years, and while people close to her are aware that she is intersex and transgender, "people in her community are not." …
The court concludes that Ms. Jansen has not carried her burden of showing irreparable harm in the absence of preliminary relief, which is sufficient to deny her motion for a preliminary injunction…. [T]he parties agree that Ms. Jansen currently possesses a valid passport that bears a sex marker consistent with her lived sex, which does not expire until 2032. Because the State Department's policy provides that all passports will remain valid until their expiration date, Ms. Jansen is not at an imminent risk of experiencing the harms stemming from carrying a passport with a male sex marker….
In contrast, Ms. Jansen's Global Entry card is currently eligible for renewal and will expire in November 2026. Ms. Jansen alleges that she has not sought renewal out of fear that she will be required to have a male sex designation on her new card…. Ms. Jansen does not dispute that her 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: suffer the indignity of losing access to this benefit because she refused to be labeled as something she is not, or the indignity 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 imminent and irreparable harm from no longer using her Global Entry card. As an initial matter, a Global Entry card is not required to enter the United States; instead, membership in the program allows for expedited processing at airports, land borders, and seaports. Ms. Jansen has not alleged that she has any plans to travel internationally. And even if Ms. Jansen had alleged such plans, all she would lose is the ability to receive expedited processing. That alleged injury does not meet the high standard for irreparable injury….
{[B]ecause [the court] concludes that Ms. Jansen has failed to show irreparable harm warranting relief, it need not consider the remaining factors for a preliminary injunction—in particular, Ms. Jansen's likelihood of success on the merits. The court believes this approach to be prudent because, in addressing the likelihood of success on the merits in their briefs and at the hearing, the parties vigorously debated the application of 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 concluded that—on the limited record before it—the plaintiffs, who were transgender, were unlikely to succeed 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' absent a stay." The Supreme Court has explained that its "interim orders are not conclusive as to the merits" but instead should "inform how a court should exercise equitable discretion in like cases."
Ms. Jansen argues that Orr is distinguishable because it does not involve intersex plaintiffs like herself. The court is somewhat skeptical that Ms. Jansen's intersex identity sufficiently distinguishes her suit from Orr to escape the Supreme Court's conclusion that "[d]isplaying passport holders' sex at birth … merely attest[s] to a historical fact without subjecting anyone to differential treatment." Like the plaintiffs in Orr, Ms. Jansen wishes to maintain identification documents bearing a female sex marker consistent with her lived sex and appearance; she does not argue that her identification documents should bear a third sex marker for non-binary and intersex people (like "X" under the former State Department policy). Ms. Jansen thus appears to challenge the same policy addressed in Orr of requiring sex markers to correspond with one's sex assigned at birth. But the court need not resolve this issue at this preliminary stage of the litigation.}
Johnny Hillary Walker, III represents the government.
Facts Only
* President Donald J. Trump issued an Executive Order declaring the policy of the United States to recognize two sexes, male and female, which are not changeable.
* The Executive Order requires government-issued identification documents, including passports and Global Entry cards, to reflect the holder's sex based on the individual's reproductive system at conception.
* The U.S. Department of State and U.S. Customs and Border Protection (CBP), part of the U.S. Department of Homeland Security (DHS), now require sex markers on passports and Global Entry cards to reflect sex assigned at birth.
* Ms. Jansen is an intersex, post-operative transgender woman in her fifties with sex chromosome mosaicism.
* Ms. Jansen learned about her mosaicism as a teenager and sought legal changes to her birth certificate and other records, and underwent surgery and hormone therapy.
* Ms. Jansen possesses a valid passport that does not expire until 2032.
* Ms. Jansen's Global Entry card is eligible for renewal and expires in November 2026.
* Ms. Jansen argued the government's denial of the benefit created a Hobson's choice regarding her identity.
* The court found Ms. Jansen had not shown irreparable harm in the absence of preliminary relief.
* The court noted that the Global Entry card does not require international travel for entry; membership allows for expedited processing.
Executive Summary
Full Take
The legal maneuver described illustrates a tension between evolving personal identity, established state documentation, and fixed legal categories used by government policy. The core conflict pivots on whether an individual's lived sex should dictate official documentation, especially when that reality conflicts with biological markers recorded at birth. The court’s focus on the distinction between permanent documentation (passport) and temporary access benefits (Global Entry card) reveals a pragmatic judicial approach: relief is granted where the harm is immediate and substantial, not merely philosophical or potential. The discussion referencing *Trump v. Orr* suggests an awareness that past rulings leave interpretive space, particularly regarding how to apply equal protection principles across diverse identities like intersex status versus transgender status. This signals that legal progress in recognizing identity markers is often incremental, tested case-by-case rather than immediately settled by precedent. The skepticism expressed about distinguishing the intersex suit from the transgender context implies a systemic challenge: how does a system designed around binary categorization accommodate fluid biological realities without creating further legal friction for marginalized groups?
Bridge questions: If the court finds that the distinction between passport status and benefit access is meaningful, what criteria should guide future litigation concerning official documentation for non-binary or intersex individuals? How can institutional systems balance historical record accuracy with contemporary lived experience without defaulting to restrictive binary definitions? What long-term systemic shifts are necessary for regulatory bodies to move beyond treating identity markers as static facts to recognize them as dynamic elements of selfhood?