27-03-2025
US judge skeptical of Trump's 'gender ideology' arts grants restrictions
March 27 (Reuters) - A federal judge appeared open on Thursday to blocking President Donald Trump's administration from requiring arts organizations to certify they will not promote "gender ideology" to obtain grant funding from the National Endowment for the Arts.
Senior U.S. District Judge William Smith during a hearing in Providence, Rhode Island, questioned how such a policy could be reconciled with federal law, "which prohibits requiring grant recipients from engaging in essentially government propaganda."
The NEA first adopted that criterion last month to implement an executive order the Republican president signed upon returning to office on January 20 that directed the government to recognize only two sexes - male and female - and required agencies to ensure grant funds do not promote "gender ideology."
Several arts and theater groups represented by the American Civil Liberties Union sued, opens new tab, saying the policy would force them to self-censor to obtain funding and alter the scope of artistic projects that involve transgender characters or LGBTQ actors.
After the lawsuit was filed, the NEA withdrew its certification requirement pending further review, with plans to issue a new policy by April 30.
Assistant U.S. Attorney Kevin Bolan argued that decision meant the request for an injunction sought by the Rhode Island Latino Arts, the National Queer Theater, the Theater Offensive and the Theatre Communications Group was moot.
"The circumstances have changed," Bolan said.
But Smith told Bolan the agency's decision to voluntarily end the policy appeared manipulative and designed so the government could argue the request for an injunction was moot when it was likely the NEA would just re-adopt the same requirement.
"I really do struggle to see how the agency could not do exactly what it has already done under the plain terms of the executive order without violating the executive order," said Smith, an appointee of Republican President George W. Bush.
The judge said such a requirement appeared to contradict the agency's governing statute, the National Foundation on the Arts and the Humanities Act of 1965, which requires grants to be issued based on artistic merit and excellence, without regard to particular viewpoints.
Vera Eidelman, a lawyer with the ACLU, said the policy was clearly a viewpoint-based eligibility bar that ran afoul of not just that statute but also the U.S. Constitution's First Amendment's free speech protections.
She said by law, the NEA had been barred from directing, supervising or controlling a funded organization's policies or personnel in order to further its mission of fostering "the material conditions for releasing this creative talent."
"All of these restrictions were meant to prevent the NEA from becoming essentially a government propaganda machine, allowing political control of culture," she said.
Smith promised to rule by April 4, citing a looming deadline three days later for arts organizations to submit applications for grant funding for the 2026 fiscal year.
While he did not promise an injunction, he said one would help get the plaintiffs "out of this Hobson's choice they have to make about whether to submit a proposal they want to submit versus the proposal they think they might have to submit."
The case is Rhode Island Latino Arts v. National Endowment for the Arts, U.S. District Court for the District of Rhode Island, No. 1:25-cv-00079.
For the plaintiffs: Vera Eidelman and Scarlet Kim of the American Civil Liberties Union Foundation.
For the government: Kevin Bolan of the U.S. Attorney's Office for the District of Rhode Island
