Questions Arise as “Gender X” is a third gender option on Oregon IDs

Written by Lucas Kibby, CleanFleet

Image from CNN article

A Multnomah County judge allowed Army veteran Jaime Shupe to legally identify as neither male nor female last year, a first in the U.S. The ruling required the Oregon DMV to find a solution for a court ordered gender neutral classification as an administrative change.

The proposed change is adding an option for Gender being marked as an “X” on the driver’s license. The DMV consulted with stakeholders, including local, state and federal law enforcement agencies, insurance companies, and organizations.

The change that is now official is allowing Oregonians to “opt out” of providing a specific gender on the drivers license and using an “X” to signify this gender “option”. 

Similarly, in an Oregon bill, which passed the state Legislature and is going to the governor to sign into law, transgender residents want the Oregon Legislature to make it easier for them to change their names and gender designations on vital records.

However, these change bring up many questions for businesses.

Questions for businesses now that Gender “X” is allowed on Oregon IDs

An estimated 20,000 Oregonians identify as transgender, according to The Williams Institute at the University of California-Los Angeles, and 1.4 million nationwide.

In the drug and alcohol testing industry, many of these people may be a federally regulated CDL holder (truck driver) or an employee of a company who requires drug testing. There are many situations where these employees may face an observed drug test. It is here the first questions arise.

How is that observed drug test to take place?  Many observed drug tests arise when a person is caught trying to cheat a drug test or a urine drug test is out-of-temperature. There are also situations where an employee must meet observed collection requirements in order to come back into a safety-sensitive role after being tested positive for a drug test.

These observed collections have many state and federal rules where a person of the same gender must observe the test. Does this mean drug testing collection sites must have a Gender X staff to observe the drug test?

If not, do we ask the donor which gender they feel most comfortable to observe the drug test? This doesn’t seem a viable option either because that could put the observer in a very awkward position based on their Gender identification.

Another scenario that arises are those who may want to find loopholes when being drug tested. Many have heard the stories of strange methods, devices, or products used to try and cheat. What if a federally regulated CDL holder changes their gender on their driver’s license in order to take advantage of these gray areas?

A representative at the Office of Drug & Alcohol Policy & Compliance (ODAPC) told us that there is no talk of ODAPC level regulations coming down from the current administration on gender neutral regulations. The previous administration did have a couple regulatory pushes on this topic, but nothing ever came from them.

ODAPC’s “unofficial” recommendation for collection facilities is to follow TSA rules in gender neutral situation. We should rely on the gender as expressed by the employee being tested. If a “Gender X” person expresses them-self as a female, then they get patted down by a female TSA agent.

Now, with the new DMV rule in place, Legacy Health Systems has instructed collection sites that “it was determined that we are going to go by Anatomy when this issue comes up.  This will be the case for us on all DOT collections regardless of the client.”

It is not just the drug testing industry asking questions as many of these same questions affect prisons, correctional facilities, police departments, Department of Human Services and child custody issues, health clubs/gyms, etc.

For those facing these various questions, the biggest thing we can do right now is to teach our staff about gender sensitivity. As we wait and see what happens at the Governor’s desk, we will continue to ask for answers to these questions.

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