Episode Three: Transgender Issues in Public Schools
Class Act tackles a fascinating and controversial topic: What does the federal government require of school districts serving transgender students and how did we get here? Lisa and Miriam summarize recent regulations issued by the Office for Civil Rights and discuss some of the more prominent case law, including Gloucester County School Board v. G.G., the famous Virginia case pending before the Supreme Court. We chat about why this topic is so controversial and how school districts across the country are reacting to these developments. For an update explaining the new administration’s perspective on transgender issues, please take a look at this alert.
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Miriam: Welcome to education law update, the podcast that entertains and informs. I’m Miriam.
Lisa: I’m Lisa.
Miriam: We are Ohio education attorneys and every so often we get together to talk about the latest legal developments in school law and how these may affect school districts, board members, administrators, teachers, really anybody who works in the schools. This week we have a fantastic topic for our audience. Transgender issues in schools. As you know, I’m sure this is a very controversial topic. We’ll have a lot to talk about. The format is that we’ll first go through a brief timeline of events and decisions. Then we will talk about some of the competing interests that make this area so controversial and then towards the end we will also touch upon some creative ideas that districts around the country are implementing to handle some of these challenges.
Lisa: Yes, that sounds like a good plan. Why don’t we start with the background? Historically, individual state’s jurisdictions have really just addressed transgender questions as they’ve come up. Some states have developed laws, mostly more recently protecting transgender people, but some states including Ohio really don’t have any specific laws to protect transgender.
Miriam: So it’s really individual, state by state?
Lisa: Yes, absolutely, and has been at least in school districts and pretty individual question, just as an issue comes up, the districts would handle it as they see fit, looking at the circumstances and their community–
Miriam: On an individual basis.
Lisa: Yes, very individual. Basically every state had decided for itself up until 2016 back in the spring. We had the department of education and the department of justice step in.
Miriam: That’s always where the problem starts when the federal government steps in. Sorry Lisa, go ahead. Sorry.
Lisa: Yes. Here comes the government and they issued a dear colleague letter that was accompanied with a guidance document that directed schools across the nation to provide students with access to bathrooms, locker rooms, privacy areas that match their chosen gender identity. There was no requirement in this guidance for any type of medical documentation.
Miriam: Also, I just wanted to clarify to our audience that when the Office for Civil Rights, when the federal government comes in and gives these directives, there is always a consequence attached to not following the guideline and the consequence is that the district risks losing their federal funding. The guidance is presented in the form of a very polite letter. It’s called a dear colleague letter. I always thought that was so funny because it’s so pleasant sounding, but if you don’t follow it, if you don’t comply, the district can possibly lose all of its federal funding.
Lisa: Right. Basically guidance documents that are more than just mere suggestions.
Miriam: Yes, these are not optional and the way it typically works is that a family would file a complaint, the office for civil rights would come in and investigate, do a complete investigation and then they would issue either a finding of violations or they would ask the district to resolve the matter by implementing the changes that they want, that the office for civil rights wants and if the district agrees, then everything is good and fine. If the district says, no, we do not agree with these ideas, we don’t want to subject our students to this, then the federal government has the authority to withdraw federal funding from that district.
Lisa: Right. For many districts that financial impact could be very significant, so getting back to this guidance document, my understanding is they specified this schools need to use the name and pronoun that is left by the student and really work to accommodate the students’ gender identity and things like overnight trips and other areas within the school setting. Did you notice anything in particular in the guidance that caught your eye?
Miriam: Yes, so I definitely saw some suggestions about overnight school trips. What was interesting about this guidance document is that we had a dear colleague letter first that came out and the dear colleague letter listed the school’s obligations, listed what the districts are required to do but then there was also an accompanying documents and that was maybe 20 pages or so of examples of how school districts across the country were already handling all of these problems. To me when I saw that it was like the Office for Civil Rights like OCR was saying, “Look, don’t freak out, there’s already so many districts that are handling this. You can do it too,” but maybe I am being too kind.
Lisa: I could have taken a little bit a different way as to, well, here’s some things that are being implemented in other places, but by the way, you need to do these things.
Miriam: Yes. These are examples, but not really optional examples.
Lisa: Yes and I don’t know how many of them are examples that were optional from those districts or if they were, I don’t, think that OCR went in and said, “Hey, here’s your corrective action. This is what you need to do.”
Miriam: Yes, that’s definitely possible. After this was done in May, there were many school districts and States that came out against this.
Lisa: Yes, almost as immediately as this went out in districts started to see it, there was quite the backlash right away. Texas is –
Miriam: Where it started.
Lisa: Yes, pushing forward with this. A really interesting quote came from the governor over there in Texas that directed all Texas schools to defy these directives. He basically stated while in Texas, you can keep this 30 pieces of silver, we will not yield to blackmail from the president of the United States.
Miriam: In other words, OCR, you can take your federal money and shove it where the sun don’t shine. We’re not going to do what you want to do. Obviously, that’s very colorful language from Texas, but not only Texas. Right?
Lisa: No, and as you work through this controversy, you can see why it is so controversial. There’s a lot of conflicting interests that we’ll really try to dive into today, but it’s definitely passionate on every side. Basically what Texas did along with some other States is filed a lawsuit challenging this guidance in the federal district court. Basically-
Miriam: There was inflammatory language. There was some hot language in those-
Lisa: Like I said its a passionate topic for sure. You can even see that in the complaint. There’s some language in there about the Obama administration had conspired to turn workplaces and educational settings across the country into laboratories for a massive social experiment flaunting the democratic process and running over common sense policies protecting children and basic privacy rights.
Miriam: This is a pretty accusatory of the entire Obama administration and the office for civil rights, so a lot of States, a lot of people were really upset about this.
Lisa: at the core, these States are looking at it as rewriting what Congress has sat down and said, here’s the law and we’re just going to rewrite it and there’s questions in this complaint about who’s authority is it the States? Is it-
Miriam: Right, because title nine I should explain– title nine is the law that prohibits governments or an a school districts, government funded entities from discriminating against individuals because of their gender. There was no mention of transgender in that law. There’s nothing in title nine that specifically talks about transgender individuals and the concern here is that now the law is being expanded to include topics that were never intended by Congress and OCR as a federal agency. The question is does OCR have a right to take a law that Congress developed and passed and increase it to include issues that were not considered by the legislature in the first place?
Lisa: Other agencies like the EOC have started to expand-
Miriam: The Equal Employment Opportunity Commission.
Lisa: Correct, have expanded some of this interpretation to have the terms sex incorporate transgender community.
Miriam: In other words, employers cannot discriminate according to the EOC based on transgender status.
Lisa: Right. They’re making some of those determinations. It’s not surprising that the office of civil rights will treat them as such as well but again, this isn’t going back to anything that Congress or state legislatures or any of the rulemaking bodies have put out there.
Miriam: Where are we holding now?
Lisa: The first thing that they asked for was a preliminary injunction to stop the opposite civil rights from enforcing this guidance on school districts. In the Texas district court when I hadn’t granted that injunction.
Miriam: So in other words, the Texas court said the office for civil rights has no authority, cannot investigate and direct the school districts to comply with these regulations about transgender students.
Lisa: Right, but keep in mind, so this is only a preliminary injunction. So, for the time being, is just while this case is going through court and being decided, they’re saying they can’t enforce it and in August the court issued an order that did reiterate that yes, this is an injunction and it’s nationwide. It’s not just if you’re a district in Texas, no matter where in the country you are-
Miriam: Apply to the whole country.
Lisa: -stop this civil rights right now isn’t going to be able to enforce this based on that court decision.
Miriam: Right now at the moment, I don’t think they’re even investigating complaints like this until this issue is decided.
Lisa: It would make sense because why investigate something you can’t enforce?
Lisa: That may be the case they may just sit on those complaints right now.
Miriam: Yes, I think they step back a little bit.
Lisa: In this August order, the district court does have the judicial power to issue an injunction that expands the whole country, not just to the state that it’s in. It’s not beyond the power they have court.
Miriam: Well, that’s so interesting because you’d think the Texas court would just have jurisdiction over Texas.
Lisa: Yes, that injunction is out there for now for what it’s worth.
Miriam: She made a lot of States happy, but definitely by a controversial.
Lisa: Yes, and since the filing of this case in Texas, my understanding is in the numerous other states have joined in, Ohio being one of them.
Miriam: Yes, Ohio is included.
Lisa: I’m not sure how many States are up to now, but I’d be willing to bet it’s getting close to the majority of the States are opposing.
Miriam: It’s getting up there, it’s definitely getting up there. We’re waiting on the results of these lawsuits in, but in the meantime, we have a school transgender case that has just been accepted just recently by the United States Supreme court and that is a fascinating case out of the fourth circuit out of, I think it’s Virginia and this is a case called Gigi vs Gloucester. This case begins with a student born a female, biologically a female and then the student transitioned to being a male and presented himself as a male and began taking hormones and chose a traditionally male name, he started using male pronouns.
Lisa: Yes, I think going back to about age 12.
Miriam: From age 12?
Lisa: I had read that the boy had started identifying as a male.
Miriam: Okay, and from what I understand, the school district, the school officials, the administration initially was fine with it. There were no problems for at least the beginning of the school year. I think it was his sophomore year, his parents said, “Look, this is our son. He’s identifying as a male, please treat him as one.” And the school administrators said, fine and he was allowed to use the boy’s restroom. For the first few months of school, it was not a big deal at all, but–
Lisa: Right, so as many of these cases develop if not always quite just the situation at hand. I think we had some community players jump in at this point in the community.
Miriam: The community was in an uproar. The community was very angry, as soon as they found out there was just so much drama. People started calling the district, they demanded a board meeting. At the board meeting, so many people showed up. I think it was like 27 people spoke during the board meeting. Many of them were hostile to the student, to Gee and they referred to him as a young lady. People threatened to oust the board. The community members basically said, if you don’t develop a policy that bans transgender people from using the bathroom of the sex they identify with, we will oust you in the next election.
Lisa: The board was really getting pushed into a corner.
Miriam: Yes, I think that’s really difficult. I think that’s a terrible, very difficult situation. Here are some of the concerns that the community members raised. First, they said that this is going to violate the privacy of other students, so allowing this female to male transgender student to use the boys bathroom is going to violate everybody’s privacy and it’s also going to lead to sexual assault in the restrooms, which I found a surprising argument because usually, you see that going the other way. If you see a male to female transgender student and then that student wants to use the girl’s bathroom, then there’s concerns about assault and so on. You don’t usually see that argument being made in the reverse situation where a female to male transgender student wants to use the boy’s room, but that was something interesting.
Lisa: Yes, but you got to remember too, these are such hot topics. I think as soon as you have an entity, like a district making a decision or allowing or permitting something-
Miriam: As controversial as this.
Lisa: -quickly the appearance that might have concerns about it jumped to more of the extremes, so it may not have anything to relieve and do with this individual student.
Miriam: Yes, exactly and the other concerns as well, I was just going to mention some of them right now. The other concerns as well just seemed to be really extreme. One commenter suggested that if the board does not adopt this policy, barring the student from the boy’s bathroom, non-transgender boys would come to the school wearing dresses to gain access to the girl’s bathrooms and I don’t like just personally, I can’t see this. I don’t know if you can Lisa, I cannot see like teenage boys dressing up in dresses to sneak, I don’t see that. I think that our culture is–
Lisa: Well, I like to know when they have time to do that when they’re getting educated, but that might be a whole other topic of itself. But long story short, we had a community in this case really putting pressure on the board to do something.
Miriam: Let me tell you something else. One of the speakers called the students, many of them called him a girl or a young lady. One of them called him a freak and compared him to a person who thinks he is a dog and wants to urinate on fire hydrants. I thought this was pretty extreme, pretty confrontational board meeting.
Lisa: Well, hearing this as I’m sure you can picture how the student would feel.
Miriam: Yes, that’s terrible.
Lisa: Yes, very attacked and you can see how it would quickly turn to–
Miriam: Escalate or totally escalate.
Lisa: The board got backed into a corner and passed a policy that basically said all students, staff, whatever, had to use the facilities that correspond to their biological gender.
Lisa: Once this was enforced, the student in the case was no longer allowed to use the locker room of his choice.
Miriam: Right, and then I think the student filed a title nine lawsuit in court and the question again for the court was whether title nine, whether this law that Congress passed about gender discrimination encompasses transgender discrimination as well. The appellate court, the fourth district ended up directing the school to allow the student to use the boy’s bathroom and then it went to the Supreme court and interestingly, the Supreme court issued an emergency state order, meaning the court said, “While we look at this case, while we make this decision, the school district does not have to provide access to the student based on his gender identity.”
Lisa: While this case is going on? Fine.
Miriam: While this case is going on, that’s right.
Lisa: Yes, and we won’t bore you with some of the questions that are before the court on this one because there’s an issue, there’s a little more nuanced here as far as how much deference should be given to different evidence that is presented for the case.
Miriam: Yes, that does sound boring. [laughs]
Lisa: Yes, but the court will be looking at the agency should the department’s specific interpretation of title nine be given any effects.
Miriam: Right, yes.
Lisa: The court be relying on-
Miriam: The office for civil rights.
Lisa: -that interpretation.
Miriam: Yes, so the question here is, okay, the office for civil rights, which is a federal agency, says that transgender is part of title nine and discriminating based on transgender status is discriminating based on gender and schools who do this and who don’t comply should lose their federal funding and the Supreme Court has to look at title nine and say, what weight do we give to the office for civil right’s interpretation. OCR interpretation is this just some federal agency that is issuing some suggestions and guidance, but it–
Lisa: Right, just consider versus do we gave to follow.
Miriam: Exactly, it’ll be obligated to consider this as part of title nine. Now that this or agency. I think it’s a fascinating question because really, I think that the issue is whether or not a federal agency can overrule the legislature in a certain sense.
Lisa: Well, and I think that’s one of the big questions that hand in that Texas case.
Miriam: Yes, exactly. We’ll come back to that Texas case.
Lisa: Well, it’s a little more interesting, even with this case, because when this case first started, we didn’t even have the guidance from the Department of Education yet. That had just come out this May. At this time, the actual piece that they’re disputing about is an unpublished letter-
Lisa: -that basically indicates Title Nine’s prohibition of sex discrimination should include gender identity. This is where those other questions come into play, but it’s unpublished. How much weight can you really give that?
Miriam: Right. I think after that, there’s been a slew of these cases popping up across the country. One of the cases is in Ohio.
Lisa: Yes, and I think that’s probably why the Supreme Court decided to take this case in here because you have such-
Lisa: -differences across the country.
Miriam: One of the things that the Supreme Court likes to do is to make sure the law is unified. Unified across the country. Yes, definitely when there’s controversies like this, and different states are making completely opposite decisions, the Supreme Court will often take a case. In Ohio, here in our state, we had the Highland school district filed a lawsuit asking a federal judge to stop again, to stop the Office for Civil Rights from enforcing its regulations.
It’s a similar story, an 11 year old, male to female. This is the opposite. This is at least 11 years old was a male to female transgender, and she wanted to use the girls’ restroom. The district here said, “No, you can’t use the girls’ restroom, but we’ll give you a gender-neutral one.” Like when you go to the mall or whatever, they have those family bathrooms. They said you can use a gender-neutral one. I think a lot of schools do this actually. I think sometimes, what I’ve heard of is school districts have their transgender students use a bathroom in the nurse’s office, which is just for anybody. That’s what the district did.
Lisa: I don’t think parents were satisfied-
Lisa: -regarding this case.
Miriam: No. The parents said, “Our daughter is a girl, she should be able to use the girls’ bathroom. Why should she have to change separately or use the bathroom separately?” I was just thinking it is like a social issue. Girls go to the bathroom together and they socialize that way and middle school girls, high school girls. It is like the bathroom is a place for socialization, so I can see that perspective.
Anyway, so they filed a claim at the Office for Civil Rights. The OCR came in investigated, and as expected, it directed the district to allow this girl who is known in the filings as Jane Doe, the OCR came in and told the school to allow her to use the girls’ bathroom and to refer to her by her female pronoun and her female name. The court is the Southern District Court of Ohio determined that the school district has to comply. This case was I think, from last year and the–
Lisa: No, actually September was the decision, and the judge, interestingly, does recognize that there are these other cases out there and basically says that this one was filed before all the other stuff going on that we’ve been talking about, so in essence disregards the new developments because of when this case originated.
Miriam: Anyway, so in Ohio right now, we have a Federal Judge issuing an order to a school district to comply with the Office for Civil Rights. That is the latest state of the law in Ohio.
Lisa: Yes, and at least for us in Ohio, I think this makes it really tricky because we now have precedence that says you need to comply with that. While we know there’s other stuff is going on, and we know there’s an injunction out there, that saying otherwise. It’s really hard. We don’t have a bright line [unintelligible 00:24:28] yet. It’s really going to open the door for some creative strategies, at least for the moment until we get some higher court decisions.
Miriam: The law is really in flux here. It’s a really hot topic. I think maybe now’s a good time to talk about some of the competing interests that make these cases so challenging.
Lisa: Yes. Certainly one key-
Lisa: -conflict here, what are states’ rights? What should states be deciding versus what should the federal government and federal agencies be able to determine for the state?
Miriam: Yes, I think it’s actually a huge issue. I think, generally many people see the federal government as overstepping its bounds. I think there’s so many pieces of this. People see as federal funds are now being conditioned on compliance with yet another regulation that could be potentially expensive. It’s not like school districts are going to get any more money if they have to. If they say, “Okay, well, to comply with this, you’re going to have to build more bathrooms or different stalls in your lockers, locker rooms or whatever.” The federal government is not going to be giving out more money for that, and yet they are conditioning the money that they’re already giving on compliance with these new interpretations. I think that’s definitely very controversial.
Lisa: Absolutely. There’s also this nuance, at least with the guidance that came from OCR just in May, there was no notice or comment period. There’s this big argument out there that it’s almost working as legislation except without the process that has been put in place to safeguard legislation. The review periods, the comment period to really fine-tune before something becomes law.
Miriam: Yes. Typically, what is supposed to happen is when a federal agency like the Office for Civil Rights, when it’s issuing new binding regulations, that federal agency is expected to first publish the proposed regulations in the Federal Register, and provide a notice and comment period, which allows entities affected by the regulations to comment on the proposed regulations and have their views taken into account.
For example, what should have happened here, many people argue is that before issuing this letter, this directive in May, the Office for Civil Rights should have published the proposed regulations and asked school districts, as well as anybody else affected to comment. To comment on what do you think? What challenges does this proposes? That conflicts might arise, and then take those opinions, take those comments, take those perspectives into consideration when issuing the final regulation, but that didn’t happen.
Lisa: It’s controversial here because if you’re just interpreting existing law as an agency, you don’t necessarily have to go through their process, but there’s a lot of people and districts and states out there arguing right now that this guidance is so substantial, it basically amounts to a-
Miriam: New regulation.
Lisa: -new regulation, and almost new law.
Miriam: Yes. Right. OCR position exactly. This OCR position is that look, it’s Title Nine, we already have this law barring discrimination against students because of their gender, and this is just part of it. We don’t have to publish proposed regulations every time we interpret a piece of existing law a little bit differently, and this is just existing law. Then, of course, many other entities school districts and employees arguing that no, it’s not. It’s not at all part of. That’s the real issue, whether it’s part of Title Nine or completely new.
Lisa: It just reminds me of high school history class and learning about basic checks and balances. I think it’s almost that argument of there just were no checks.
Miriam: Yes, yes, exactly. Exactly. It’s , I guess the argument is that allowing the Office for Civil Rights, this latitude to go in and broadly expand the anti-discrimination laws, infringes on Congress’s legislative powers, and really weakens that separation that we’re supposed to have between the executive branch and the legislative branch.
Lisa: Yes, absolutely. Another competing interest and I think this one’s a little more of the hot topic to this is how much weight should be given to discrimination and preventing that on one side versus these privacy rights of many on the other side, whose privacy or whose preference or who’s the anti-discrimination takes prevalence over a circumstance and situation and making these decisions.
Miriam: Right. Because a lot of people basically say, “Look, this is a privacy issue. I don’t want my daughter going to the bathroom changing in a locker room where there is an individual, another student who has the male body parts. I’m okay with my daughter changing in front of other girls, but this person regardless of how she identifies, that person still has those body parts and I’m not comfortable with that. That’s a violation of my daughter’s privacy rights.” When I discuss this with people, you’re right, this is the argument that I hear all of the time. Obviously, I guess attorney is worried about government encroachment about the Office for Civil Rights, but a lot of parents, just regular people, are concerned about the privacy issue.
Lisa: Right and really just wanted to protect their own child and it’s easy for an agency like OCR to have a narrow view because their role is to protect and to enforce anti-discrimination. Of course, that’s going to be their focus. It’s easy for them to push to the side a little bit what rights other students have, but the school districts, you have to balance the rights of not only that one child but the other thousand kids in your district and the parents and their concerns. OCR doesn’t have to do with much of a balancing act. School districts have to do in their practical application of these issues in making decisions.
Miriam: Right. That’s because the Office for Civil Rights is really concerned with the victims of discrimination or whom they perceive to be as victims of discrimination. Interestingly Lisa, in the guidance issued by the Office for Civil Rights, not in the Dear Colleague Letter, but in their examples, they issued examples of policies and emerging practices that I mentioned earlier. Here, they do have a little section on what to do about other students. This is actually the first time that I have seen this from the Office for Civil Rights.
When we have guidance from OCR about other topics, about special education students or race discrimination issues, we never see anything about the other side’s concerns, but here, we have, I feel like OCR is acknowledging a little bit the privacy issue because they did mention in some of these examples that when you have students who raised the privacy concerns, who are uncomfortable with the transgender student changing in the locker room. This is an example that they give. The district creates a safer space for the student who is uncomfortable. Puts up curtains, creates a separate changing schedule for that student, maybe a neutral stall. I think this is–
Lisa: You are talking about the student who is raising the privacy issue?
Miriam: Yes. I think that’s a really interesting creative way to go about addressing this. When you have these competing rights, sometimes, maybe a way out is to look at the student who is raising the concern, who does not want to be with the transgender student in the same locker room or in the same room on an overnight trip. Take a look at what that student needs and maybe address his or her concerns and that might alleviate the whole problem. OCR, I think, brings another example of a school district where if the classroom goes on an overnight trip, the eighth grade Washington trip and a group of students are planning to stay together in one bedroom and one student says, “I don’t want to be with Bobby in that bedroom because Bobby is a transgender student.” You’re not going to say, “Okay, Bobby, now you can’t be in there.” That would be discriminatory according to OCR, but an example that OCR does give of a school district handling this is providing a separate room, a separate facility for the student.
Lisa: For the complaints.
Miriam: For the complaining student. I think that’s an interesting way to look at it.
Lisa: I think you’re getting at the heart of where this is going to go regardless of how all of these court cases settle. Districts really are going to have to start being creative in some of their responses.
Miriam: Yes. I think there’s just so many areas actually that we haven’t even talked about, that we haven’t explored. For example, I saw something in OCR about what happens when the parents are not onboard or when the parents don’t even know. Let’s say a student is transitioning and that the student says, “The school district, keep this a secret from my parents.” That’s so challenging.
Lisa: For sure. I think a lot of these, especially when you’re talking about middle school and certainly high school students, I don’t know if the districts always unotice all of the stuff.
Miriam: Right. This is really interesting, privacy concerns and FERPA issues that are going to be highlighted as these cases go forward, as these situations develop. We will definitely keep you informed and up-to-date as we hear the latest court decisions and whenever we hear anything from the Supreme Court. I don’t think that oral argument has been set in that case yet.
Lisa: I was just going to say that. I don’t think they’ve scheduled that. To be honest, I don’t know if they’re holding off until we have a full Supreme Court. I know we talked about that before if this is controversial enough that [crosstalk]
Miriam: They need nine people. They need nine justices to decide. Yes, that’s possible.
Lisa: We may be waiting a little while.
Miriam: Obviously with this transition in administrations, that’s also another factor in terms of deciding where all of this is going to go, whether OCR’s focus will shift or will stay the same. That’s definitely something to think about. We’ll definitely let you know what happens. We’ll keep you informed. Hopefully, we will even play some clips. We love to play clips of audio recordings from the oral arguments. That should be fascinating.
Lisa: I think the oral arguments could be very interesting. While you’re waiting for some of these decisions to come down, we just really encourage you to be creative in your problem-solving approaches.
Miriam: Please let us know what you as a district are doing. Feel free to email us about what you are doing as a school district to accommodate transgender students or–
Lisa: I always love hearing the creative ideas.
Miriam: How you handle some of these challenging situations.
Lisa: Until next time, we do need to jump into our disclaimer. The content of this podcast is provided for general information purposes only. The podcast is not legal advice, does not create an attorney-client relationship and should not be relied upon in making legal decisions. Actions on legal matters should be taken only upon advice of legal counsel. Walter Haverfield does not guarantee the accuracy of information contained in this podcast.