Gender Ideology Prohibition for Grants Flouts First Amendment

The National Endowment for the Arts violated the First Amendment by requiring grant recipients to comply with all executive orders, including President Donald Trump’s directive barring any federal funds from going to projects that “promote gender ideology,” a federal court said Friday.

The certification requirement also runs contrary to its establishing statute and violates the Administrative Procedure Act, Judge William E. Smith of the US District Court for the District of Rhode Island said. Smith partially granted summary judgment to a coalition of arts and theater groups and permanently enjoined NEA from enforcing its grant conditions on the plaintiffs.

“If the NEA restricted all applications that touched on the subject of ‘gender ideology,’ or on the relationship between sex and gender more broadly, that would amount to a content-based restriction on artists’ speech,” Smith said.

An executive order Trump issued in January directed federal agencies to ensure grants aren’t used to “promote gender ideology,” which the order defined as replacing “the biological category of sex with an ever-shifting concept of self-assessed gender identity.”

A coalition of arts and theater groups, which have previously received funding from the endowment and promote works featuring transgender and non-binary people, alleged the “vague” new rules are forcing organizations to guess whether their projects violate Trump’s order. It also goes against Congress’ directive in the National Foundation on the Arts and the Humanities Act that proposals can only be judged on artistic merit, since lawmakers repeatedly rejected amendments adopting viewpoint-based standards, the groups said.

Smith declined to issue a preliminary injunction in April after the endowment rescinded its implementation of the executive order pending administrative review. The endowment later announced a new policy stating the chair will review applications for whether a proposed project promotes gender ideology.

But the government admitted a project deemed to promote gender ideology will make it less likely to receive a grant and “singles out” those projects “for disfavored treatment,” which constitutes viewpoint-based discrimination in violation of the First Amendment, the groups said. The endowment also “resurrected the certification requirement” by amending its assurance of compliance again, which now reads that applicants must comply with all executive orders.

The government asserted the First Amendment doesn’t apply to the grants, because the endowment “acts as a patron of the arts and controls its own message by selectively evaluating which projects it wishes to endorse.” If the endowment was insulated from political considerations, Congress “would not have embedded so many political appointees and elected officials” within the agency, the government said. The endowment chair is appointed by the president and confirmed by the Senate.

Smith partially granted summary judgment to NEA on the coalition’s Fifth Amendment claim, ruling the claim fails because plaintiffs submitted their grant applications prior to NEA giving final notice of the requirements.

The ACLU Foundation represents the plaintiffs.

The case is R.I. Latino Arts v. Nat’l Endowment for the Arts, D.R.I., No. 1:25-cv-00079, 9/19/25.