The American Civil Liberties Union (ACLU) is suing the National Endowment for the Arts (NEA) for requiring grant applicants to abstain from using federal funds to “promote gender ideology” in what may be the first major legal challenge to controversial policy changes the agency has enacted since President Donald Trump took office.
In a lawsuit filed this morning, March 6, the the national and Rhode Island chapters of ACLU asked a federal judge for the United States District Court of Rhode Island to order the NEA to stop enforcing Trump’s “gender ideology” executive order, which only recognizes two immutable biological sexes in the federal government.
The NEA updated its Legal Requirements and Assurance of Compliance website last month to include a requirement that grant applicants agree to not use federal funds to “promote gender ideology.”
ACLU Staff Attorney Vera Eidelman, who is leading the lawsuit, argues that the NEA’s enforcement of the gender ideology mandate violates First Amendment protections and administrative procedure law. The suit also alleges that the definition of “gender ideology” as set by the Trump administration is unconstitutionally vague and “will chill protected speech by causing individuals to steer clear of the prohibited zone,” Eidelman said in a phone call with Hyperallergic.
“It imposes a viewpoint-based prohibition on grant recipients,” Eidelman explained. “It’s basically a bar on anyone getting NEA funds, or even being eligible for NEA funds, because they express a message that the government doesn’t like and that is very much contrary to what the First Amendment allows.”
The suit represents four arts organizations — Rhode Island Latino Arts (RILA), the Theatre Communications Group and National Queer Theater in New York, and The Theater Offensive in Massachusetts — that allege they cannot apply for the NEA’s Grants for Arts Projects out of fear that their projects will be found to “promote gender ideology.” All four of the organizations, the lawsuit said, have promoted art that “affirms the lived experiences of transgender and nonbinary people.
Hyperallergic has contacted the NEA and the plaintiffs in the case for comment.
A similar NEA compliance requirement barring diversity, equity, and inclusion (DEI) initiatives, also implemented in the wake of Trump’s mandates, has been suspended after a federal judge issued a preliminary injunction last month.
According to the ACLU’s lawsuit, RILA, an interdisciplinary art center in the town of Central Falls, planned to apply for NEA funding for either a theater production of Faust, for which the organization had considered casting a nonbinary actor, or an LGBTQ+ storytelling series.
But the NEA’s compliance requirement forced RILA to walk back their initial proposal to avoid being barred from the program, instead submitting an application for an alternative project, the suit argues.
“All of our projects are designed to welcome and celebrate a diverse array of identities and experiences, especially those of recent immigrants and those from the Latinx and LGBTQ+ communities,” Marta V. Martínez, executive director of Rhode Island Latino Arts, said in a statement via the ACLU. “That is the principle RILA was founded on, and we can’t be bullied into compromising our values.”
Eidelman is asking the court to act before the NEA’s March 21 deadline for the Grants for Arts Projects programs for the fiscal year 2026.
“If these kinds of restrictions are imposed and are allowed to stand, then agencies that are supposed to be about encouraging, promoting and making speech by private actors possible — whether that’s artists, researchers, academics, scientists — become mouthpieces for this administration and change public conversation to only reflect ideas that the government likes,” Eidelman told Hyperallergic.
Thursday’s lawsuit echoes a ’90s legal battle surrounding the “NEA Four,” a group of mostly LGBTQ+ identifying artists whose NEA grants were pulled after Congress passed a clause that allowed it to consider “decency and respect for the diverse beliefs and values of the American public.” The artists argued that the withdrawal of their grants violated first amendment in NEA v. Finley at the Supreme Court, where justices ruled in favor of the NEA.
Though the “decency” clause was deemed constitutional, the lawsuit filed today claims that the Supreme Court said it “would confront a different case” if the NEA denied grant applications expressing “disfavored viewpoints.”
While the NEA has told Hyperallergic that because executive orders are “full force and effect” because it is a federal agency, Eidelman said that the NEA is overstepping. “The fact that an executive order pushed them to do this doesn’t create the authority to do it,” she said.
Eidelman told Hyperallergic that when Congress created the NEA in 1965, it was intended to only fund private art based on its “artistic excellence and artistic merit.” Enforcing compliance with the “gender ideology” mandate, Eidelman claimed, does not align with the agency’s intended processes.
“Gender ideology,” per President Trump’s executive order, is defined in part as “the false claim that males can identify as and thus become women and vice versa, and requiring all institutions of society to regard this false claim as true.”
The compliance requirement, the lawsuit said, does not clarify whether transgender, queer, or nonbinary individuals can participate in NEA programs, or if organizations can affirm those identities more generally.
“We have a right to clarity in our laws, we have a right to know what we might be crossing the line, and we also have a right to clarity in the guidelines that are motivating enforcers,” Eidelman said.
