Lawsuit Puts Hold on NEA 'Gender Identity' Verbiage

A law suit filed in the U.S. District Court of Rhode Island on March 6 led the National Endowment for the Arts to agree that, for the moment, grant applicants need not attest that they will not “promote gender ideology” when applying for agency funding.

Filed on behalf of Rhode Island Latino Arts, National Queer Theater, The Theater Offensive, and the Theater Communications Group, the suit by the ACLU is in response to Donald Trump’s executive order mandating that NEA funds not support projects that reasonably appear to “promote gender ideology.”

The ACLU is seeking a preliminary injunction or temporary restraining order against the prohibition before the March 24 final application deadline. “We will continue to seek urgent relief against the NEA’s unconstitutional bar on projects that express messages the government doesn’t like,” noted Vera Eidelman, senior staff attorney at the ACLU, in a statement. “This is a huge step towards initial relief.”

The crux of the ACLU’s argument is that the certification requirement and funding prohibition violate the First Amendment, the Administrative Procedure Act, and the Fifth Amendment. “Grants from the NEA are supposed to be about… artistic excellence,” insisted Edelman. “Blocking eligibility for artists because they express a message the government doesn’t like runs directly counter to the NEA’s purpose, the First Amendment’s prohibition on viewpoint-based regulation, and the role of art in our society.”

Under last week’s agreement, the NEA has said that artists can now apply for funding without agreeing to the new “gender ideology” requirement; it has not agreed to remove it as an eligibility criterion for funding. The NEA’s action in advance of the court hearing scheduled for March 18 means that applicants who do submit funding requests could see them summarily rejected on the basis of the “gender ideology” ban if the Rhode Island court does not issue a ruling favoring the ACLU. And even a favorable ruling would provide no guarantee that such requests would ultimately be funded. That would depend on the court’s decision as to the executive order’s constitutionality, a process that could take months, if not years.

More information about the case can be found here.