The National Endowment for the Arts (NEA) will voluntarily drop a highly criticized requirement for applicants not to use federal funds “to promote gender ideology” after the American Civil Liberties Union (ACLU) sued the agency last week, the ACLU announced on its website on Friday.
Projects found to align with “gender ideology” — a term used by President Trump that the ACLU has decried as “unconstitutionally vague” — are still ineligible for federal funding, however, the ACLU’s statement says.
The NEA, the largest funder of the arts in the United States, updated its Legal Requirements and Assurance of Compliance website last month to include the controversial stipulation in compliance with Trump’s anti-trans executive order, which prohibits federal recognition of gender beyond “the immutable biological reality of sex.”
The national ACLU and its Rhode Island chapter sued the NEA on Thursday, March 6, in a Rhode Island federal court, arguing that excluding grants applications with projects affirming the experiences of nonbinary and trans individuals could violate First Amendment protections.
The NEA has not responded to Hyperallergic‘s multiple requests for comment. As of Monday afternoon, March 10, the agency had not updated its website to drop the “gender ideology” compliance requirement. Last month, the NEA removed an anti-DEI compliance requirement that was enjoined by a federal judge.
The ACLU told Hyperallergic that the NEA will voluntarily drop the recent requirement without a court order by March 11. However, the agency could still reject projects seen as non-compliant with Trump’s “gender ideology” mandate, which the lawsuit argues is too vague to enforce.
In a hearing on March 18, days before the NEA Grants for Art Projects deadline closes on March 24, the ACLU is expected to ask the court to enjoin the NEA’s funding ban.
Senior Staff Attorney Vera Eidelman, who is leading the case, told Hyperallergic last week that the NEA’s enforcement of the mandate was unconstitutional because it imposed a “viewpoint-based prohibition on grant recipients.”
The plaintiffs are four organizations that have previously affirmed the lived experiences of trans and nonbinary artists and individuals, according to the lawsuit: Rhode Island Latino Arts (RILA), the Theatre Communications Group and National Queer Theater in New York, and The Theater Offensive in Massachusetts. The organizations alleged in the federal complaint that they were barred from receiving funding from the NEA “on artistic merit and excellence grounds” due the agency’s compliance with Trump’s “gender ideology” ban.
“It’s basically a ban 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,” Eidelman said last week.
“We will continue to seek urgent relief against the NEA’s unconstitutional bar on projects that express messages the government doesn’t like, but this is a huge step towards initial relief,” Eidelman said in a March 7 press release. “We won’t stop fighting until these new requirements are struck down for good.”
