DOT proposes to substitute "sex" for "gender" throughout the transportation drug and alcohol testing rules

Proposes to amend 49 CFR part 40 to replace "gender" with "sex (male or female)" at 40.67(g) (observer matching for directly observed urine collections), 40.69(c) and (d) (changing "same-gender" to "same-sex"), and 40.145(h)(1)(ii) (alcohol testing). The preamble states that "E.O. 14168 stated, among other things, that it was the policy of the United States to recognize two sexes, male and female." The proposal retains sex-matching for directly observed collections, specifying that "the observer is the same sex (male or female) as the employee" and that collectors "must never permit a person of the opposite sex to act as the observer." Because directly observed collections require an observer to view the employee's genitals, the terminology change has concrete consequences for transgender employees in safety-sensitive transportation jobs.