What It Means to Cite Title IX As A Law In Favor of Trans Inclusion in Sports: A Halbwachs v Schwartz Collective Memory Debate

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In October, 2002, the United States Congress wept as it passed a resolution to change the name of Title IX to​ The Patsy Takemoto Mink Equal Opportunity in Education Act. This change was made in honor of Hawaiian Congresswoman, Patsy Mink, who wrote Title IX and changed history for millions of American women. The law—which was signed by President Nixon on June 23rd of 1972—was revisited by Hawaii’s very own, Congresswoman Tulsi Gabbard in January of 2021. Following the congressional introduction of the Protection of Women and Girls in Sports Act, Gabbard cited the safekeeping of Title IX as her primary reason for sponsoring the Act. “Title IX is being weakened by some states who are misinterpreting Title IX, creating uncertainty, undue hardship and lost opportunities for female athletes,” said Gabbard. “Our legislation protects Title IX’s original intent which was based on the general biological distinction between men and women athletes based on sex."

It may seem puzzling to many that popular among supporters of trans inclusion in athletics is the statement that their position is protected by Title IX. This post’s purpose isn’t to take a stance on the issue of trans inclusion itself—since aligning with and valuing feminist statute might not be a person’s top priority in assessing where they stand—but is instead to ask the historically frequented question as to whether or not statutory interpretation should be literal or liberal given a specific circumstance; moreover, it asks if citing Title IX as a law in favor of trans inclusion in sports runs the risk of distorting history. “Mink was relatively well-known in her day, but she’s fallen out of the popular imagination, and people don’t know her as well as they should anymore,” said Judy Tzu-Chun Wu, UCI professor of Asian American studies and director of the Humanities Center, last month in opposition to the popular argument that Title IX protects transgender inclusion in sports. 


This argument first federally circulated during the Obama administration and now, in the Biden administration. Before then, Title IX was only ever used to protect members of the female sex. In June of last year, the Education Department under President Joe Biden issued a federal notice insisting that Title IX protects transgender and nonbinary students from discrimination. The announcement came in response to thirty-one states taking action to ban transgender athletes from participating in school athletic programs. 


If a liberal interpretation of Title IX were merely a means to extending the thought processes of those who ensured its passage so as to further trans inclusion in society, it would pose less of a threat concerning our understanding of history. However, to many, trans inclusion in sports seems to instead conflict with Title IX’s feminist sentiments. Perhaps in her remarks, Congresswoman Tulsi Gabbard was thinking specifically of the opening of Title IX, which reads, “No person in the United States shall, on the basis of sex, [...] be denied the benefits of [...] any educational program or activity receiving Federal financial assistance.” The benefits in this case would be those stemming from fair competition such as scholarships. Men’s sports do not face the same lapse in competitive fairness posed by trans inclusion, causing many Americans to consider trans inclusion in sports a sexist way in which cisgender women are not fully accepted as athletes worthy of fairness. To these folks, this may feel like yet another jab at women’s sports, which already lacks funding, television time, and audience numbers at the professional level in comparison to men’s sports. 


When pondering the potential ramifications of seeing Title IX as a law in favor of trans inclusion in sports, it’s extremely helpful to consider the work of American Psychologist, Barry Schwartz and French Sociologist, Maurice Halbwachs focused on collective memory. While Halbwachs sees collective memory as separate from fact-based history, Schwartz claims that it’s a fraction of fact based history. From this it can be concluded that Halbwachs would almost certainly call seeing Title IX as a law in favor of trans inclusion in sports a mere historical distortion that should be warned against, while Schwartz would be more likely to observe this as derived from fragments of historical truth and thus worth embracing. In his article, “Collective Memory And History: How Abraham Lincoln Became A Symbol of Racial Equality,” Schwartz claims that people pluck only the specific factual details from history that are applicable to their present and supportive of their present-day motives, thus the emergence of commemorative symbols, such as Abraham Lincoln as a symbol of black uplift during the Jim Crow era, desegregation during The New Deal era, and racial equality during the The Civil Rights Era, despite the fact that Lincoln never necessarily voiced direct support for any of these ideals and in some cases spoke out against them. Likewise, Patsy Mink, who was once a symbol of equality among the sexes in the seventies could now become a symbol of trans inclusion in sports in the 2020s even though she never expressed support for trans inclusion in sports and in fact, directly spoke out against depriving female cisgender athletes of benefits associated with their sport. 


So should Americans lean into the words of Halbwachs, choosing to interpret Title IX literally and to diagnose its association with transgender inclusion in sports as a historical distortion? Or should they instead put faith in Schwartz’s views, opting to interpret Title IX liberally and to consider Title IX fair protection of trans inclusion in sports?




Works Cited 

Cole, Megan. 2022. “Title IX’s Legacy at Fifty.” UCI School of Humanities. https://www.humanities.uci.edu/news/title-ixs-legacy-50.

Edel, Martin D., and Yara Kass-Gergi. 2021. “Making the Roster: Conflicting Title IX Interpretations Present Challenges for Transgendered Athlete Participation.” The National Law Review 12(108): https://www.natlawreview.com/article/making-roster-conflicting-title-ix-interpretations-present-challenges-transgendered. 

History.com. 2021. “Title IX Enacted.” https://www.history.com/this-day-in-history/title-ix-enacted.

Selbe, Nick. 2020. “Hawaii Rep. Tulsi Gabbard Introduces Bill to Apply Title IX Protections Based Only on Biological Sex.” Sports Illustrated, Dec. 10. https://www.si.com/college/2020/12/11/tulsi-gabbard-new-bill-title-ix-trans-athletes-rights.

Schwartz, Barry. 1997. “Collective Memory And History: How Abraham Lincoln Became A Symbol of Racial Equality.” The Sociological Quarterly 38(3):471. 

Title IX - Prohibition of Sex Discrimination, Public Law 92-318, 86 US Statues At Large, Pp. 373  


           (1972).





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