Arts Organizations Challenge National Endowment for the Arts 'Gender Ideology' Funding Restrictions

On March 6, 2025, a coalition of art organizations, represented by the American Civil Liberties Union (ACLU), filed a federal lawsuit against the National Endowment for the Arts (NEA) [1]. The plaintiffs argue that the NEA’s new grant requirement, which mandates that applicants certify federal funds will not be used to “promote gender ideology,” violates the First and Fifth Amendments of the U.S. Constitution [2]. This requirement was created from President Donald Trump’s Executive Order 14168, titled “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” issued on January 20, 2025 [3].

Executive Order 14168 establishes the federal government’s policy of recognizing only two biological sexes: male and female [4]. The order asserts that acknowledging gender identities beyond this binary framework undermines protections and opportunities based on sex [5]. Consequently, it directs federal agencies to enforce laws and policies accordingly, impacting various sectors, including arts and culture.[6]

In compliance with this executive order, the NEA introduced a certification requirement for grant applicants, stipulating that federal funds must not be used to “promote gender ideology”[7]. This broad language raised concerns among art organizations, particularly those who support transgender and nonbinary artists [8]. They fear the requirement could lead to censorship and the exclusion of marginalized voices in art [9].

Furthermore, the plaintiffs contend that the NEA’s certification requirement infringes on constitutional rights and violates the First and Fifth Amendments [10]. They argue that the prohibition on promoting “gender ideology” constitutes viewpoint discrimination, as it suppresses free speech and artistic expression related to gender diversity [11]. The lawsuit also asserts that the vague terminology of “gender ideology” leads to arbitrary enforcement, violating due process rights [12]. Additionally, the plaintiff's claim that the NEA’s implementation of this requirement exceeds its statutory authority, as it imposes content-based restrictions on artistic projects [13].

In response to the lawsuit, the NEA agreed on March 7, 2025, to remove the contested certification requirement from its funding applications while the case is pending [14]. This decision allows artists to apply for funding without attesting to the new “gender ideology” requirement [15]. However, the NEA has not rescinded its revised eligibility criteria [16]. Under these rules, any project perceived as promoting "gender ideology" remains ineligible for funding [17]. The ACLU seeks a preliminary injunction to block the funding prohibition before the final grant application deadline on March 24 [18]. A hearing for the case is set for soon after, on March 18 [19].

The lawsuit against the NEA is part of a wave of legal challenges to Executive Order 14168. For instance, on February 19, 2025, civil rights organizations, including the National Fair Housing Alliance, filed a lawsuit against President Trump, alleging that the executive orders targeting diversity, equality, and inclusion (DEI) violate constitutional protections [20].

Similarly, on February 20, 2025, a coalition of health organizations represented by Lambda Legal sued the administration, challenging the same executive orders on DEI [21]. These legal actions highlight the widespread concern over policies perceived to marginalize vulnerable communities and prevent free expression [22].

The legal dispute between arts organizations underscores the tension between federal policies and constitutional freedoms. As the case progresses, it will test the balance between government directives and the protection of free speech in the arts sector [23]. The outcome may have far-reaching implications for how federal agencies implement policies affecting artistic expression and the inclusion of diverse perspectives in publicly funded projects [24].

Sources:

1. American Civil Liberties Union, Artists Mount First Amendment Challenge to New Grant Requirements by the National Endowment for the Arts (Mar. 6, 2025), https://www.aclu.org/press-releases/artists-first-amendment-national-endowment-arts.
2. Id.
3. Buchanan Ingersoll & Rooney PC, Navigating the Legal Crossroads: Trump’s Executive Order and Its Challenge to EEOC Protections (Mar. 6, 2025), https://www.bipc.com/navigating-the-legal-crossroads-trumps-executive-order-and-its-challenge-to-eeoc-protections.
4. The White House, Keeping Men Out of Women's Sports (Feb. 5, 2025), https://www.whitehouse.gov/presidential-actions/2025/02/keeping-men-out-of-womens-sports/.
5. Id.
6. United States Equal Employment Opportunity Commission, Removing Gender Ideology and Restoring EEOC’s Role in Protecting Women in the Workplace (Mar. 4, 2024), https://www.eeoc.gov/newsroom/removing-gender-ideology-and-restoring-eeocs-role-protecting-women-workplace.
7. ACLU, Artists First Amendment Challenge, supra note [1].
8. Id.
9. Id.
10. American Civil Liberties Union, Rhode Island Latino Arts v. National Endowment for the Arts (Mar. 6, 2025), https://www.aclu.org/cases/rhode-island-latino-arts-v-national-endowment-for-the-arts.
11. Id.
12. Id.
13. Id.
14. American Theatre, NEA Drops Requirement That Applicants Agree to Anti-Trans Guideline (Mar. 7, 2025), https://www.americantheatre.org/2025/03/07/nea-drops-requirement-that-applicants-agree-to-anti-trans-guideline/.
15. Id.
16. Id.
17. Id.
18. Id.
19. Id.
20. National Low Income Housing Coalition, The National Fair Housing Alliance, National Urban League, and Others Sue Trump Administration Over Executive Orders Banning Civil Rights Principles (Feb. 24, 2025), https://nlihc.org/resource/national-fair-housing-alliance-national-urban-league-and-others-sue-trump-administration.
21. Lambda Legal, LGBTQ+ and HIV Advocates File New Lawsuit Challenging Trump’s Orders Seeking to Erase Transgender People and Defund LGBTQ+ and HIV Services (Feb. 20, 2025), https://lambdalegal.org/newsroom/sf_us_20250220_lgbtq-hiv-advocates-file-lawsuit-challenging-trump-orders-to-erase-trans-people-defund-services/.
22. Id.
23. ACLU, Artists First Amendment Challenge, supra note [1].
24. Id.