Q: My employer made me take a follow up drug test that was observed by a different gender than of myself, the donor
I’m a transgender woman and work for DOT, the testing being administered by HHS protocol
A:
In certain circumstances, you have the right to have a person of the same gender (not gender identity) serve as an observer during a drug test. If you fall into one of those circumstances, you--as a transgender woman--would have the right to insist that any observer be of the same gender (male as assigned at birth) versus a female (as assigned at birth) serving as the employer's observer.
In other circumstances, you have the right to have a person of the same gender identity serves as an observer during a drug test. If you fall into one of those circumstances, you--as a transgender woman--would have the right to insist that any observer be of the same gender identity (female as self-identifying at the time of collection) versus a male (as self-identifying at the time of collection). This can be problematic if an observer verbally self-identifies as male or female depending on the test subject because of the deference afforded to the sincerity of the individual.
In other circumstances, the observer may be required to provide visual privacy to you while providing the specimen. In that situation, usually the observer may be of either gender or any gender identity.
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