ACLU Files Lawsuit Against NEA Over Enforcement of Trump-Era Anti-LGBTQ+ Policy

# ACLU Sues NEA Over Gender Ideology Mandate in Federal Grants

The American Civil Liberties Union (ACLU) has filed a lawsuit against the National Endowment for the Arts (NEA) over a controversial new requirement prohibiting grant recipients from using federal funds to “promote gender ideology.” The lawsuit, filed on March 6, 2024, in the United States District Court of Rhode Island, seeks an injunction to halt the enforcement of the rule, which stems from an executive order issued under former President Donald Trump.

This case could set a significant precedent regarding free speech rights and government funding restrictions. It also highlights the ongoing conflict between federal mandates and the rights of artists and arts organizations to express diverse viewpoints.

## **The Basis of the Lawsuit**
The lawsuit, led by ACLU Staff Attorney Vera Eidelman, challenges the constitutionality of the NEA’s grant compliance mandate. The ACLU argues that the requirement violates both the *First Amendment* and *administrative procedure law* by restricting artistic expression.

The complaint alleges that the Trump-era executive order dictating the NEA’s policy—one that only recognizes two biological sexes—creates an unconstitutional limitation on speech. By requiring recipients to refrain from “promoting gender ideology,” the lawsuit contends that the policy forces organizations to self-censor and undermines the core purpose of federal arts funding.

“This effectively bars artists and institutions from applying for funding if their work affirms the lived experiences of transgender and nonbinary individuals,” said Eidelman in a statement.

## **Who is Affected?**
The ACLU lawsuit represents four arts organizations:

1. **Rhode Island Latino Arts (RILA)**
2. **Theatre Communications Group (New York)**
3. **National Queer Theater (New York)**
4. **The Theater Offensive (Massachusetts)**

All four organizations claim they have been forced to reconsider or withdraw grant applications due to the policy’s vague language. For instance, RILA had planned to apply for funding for a theater production of *Faust* with a nonbinary actor and an LGBTQ+ storytelling series but was compelled to submit a different project proposal to avoid disqualification.

## **What Does “Gender Ideology” Mean Under the New Rule?**
According to Trump’s executive order, “gender ideology” is defined 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 problem, as pointed out in the lawsuit, is that this definition is both vague and overly broad. It does not clarify whether artists, performers, or organizations that affirm LGBTQ+ identities, feature transgender speakers, or create LGBTQ+ inclusive projects are automatically disqualified from NEA grants.

## **First Amendment Concerns**
The lawsuit asserts that the requirement violates the *First Amendment* by imposing a blanket prohibition on certain viewpoints.

Eidelman explained, *“It’s a direct violation of free speech protections, as it forces artists and cultural institutions to avoid expressing messages that the federal government deems unacceptable.”*

Courts have historically ruled against limitations that restrict speech based on viewpoint discrimination. A prior Supreme Court ruling, *NEA v. Finley* (1998), upheld a policy requiring grant decisions to consider “decency and respect.” However, the current case argues that outright bans on “gender ideology” go beyond the limits set in *Finley*.

## **Impact on Public Arts Funding**
The NEA was established in 1965 to support creative expression based on “artistic merit and excellence.” However, opponents of this mandate argue that restricting content based on government-defined ideology distorts the agency’s founding purpose.

“Agencies like the NEA exist to promote artistic diversity,” Eidelman asserted. “If they censor projects based on viewpoint, they cease to function as independent grant-making bodies and instead become extensions of political ideology.”

Congress has not passed legislation requiring the NEA to enforce the current restriction, raising questions about the agency’s authority to implement such policies solely under executive orders.

## **A Legal Battle With Precedents**
This lawsuit follows a wider trend of legal challenges to censorship in government-funded programs. A similar NEA rule banning Diversity, Equity, and Inclusion (DEI) initiatives was recently suspended after a separate legal challenge in Maryland.

The current case could determine whether federal grant-making agencies can lawfully condition funding on ideological compliance. It may also establish guidelines for how federal agencies apply executive orders concerning artistic expression.

## **What Comes Next?**
The ACLU is seeking an immediate injunction to prevent the policy from affecting upcoming grant applications. The deadline for NEA’s *Grants for Arts Projects* is March 21, 2024. If the court does not intervene before then, applicants may have to choose between altering their artistic programs or forfeiting critical funding.

“This case is not just about