Nina Chandra
On his first day in office, President Trump issued Executive Order 14168, entitled “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.”[1] This Order instructs agencies and federal employees to enforce “sex-protective laws,” use the term “sex” instead of “gender,” and remove any statements or communications which promote so-called false “gender ideology.”[2]
Executive Order 14168 has had devastating impacts across transgender and nonbinary communities in the United States. The arts industry is particularly impacted by Sec. 3(g), which requires federal agencies to ensure grants are not awarded to projects that promote gender ideology[3]. Shortly after the Order was issued, the National Endowment for the Arts (NEA), an independent agency of the federal government which grants funding to artistic projects, took steps to comply with Sec. 3(g). Specifically, the NEA required grant applicants to “certify their understanding that federal funds shall not be used to promote gender ideology” (certification requirement) and deemed all applications for projects promoting gender ideology ineligible for federal funding (eligibility requirement).[4]
In response to these new changes, a group of arts nonprofits sued the NEA and the Acting Chair of the NEA, Mary Anne Carter.[5] The plaintiffs include National Queer Theater, the Theater Offensive, Theatre Communications Group, and Rhode Island Latino Arts, all of which are theater collectives or organizations focused on uplifting LGBTQ+ stories and individuals.[6] All these plaintiffs had received funding from the NEA beforehand.[7] The plaintiffs claim that the NEA violated the Administrative Procedure Act by exceeding their statutory authority and taking arbitrary and capricious action through releasing the new, discriminatory requirements.[8] Further, the plaintiffs allege violations of the Fifth Amendment for unconstitutionally vague laws and the First Amendment for imposing a “viewpoint-based bar” on federal funding applications.[9] The lawsuit was filed by the American Civil Liberties Union (ACLU) of Rhode Island in the United States District Court for the District of Rhode Island on March 6, 2025.
Surprisingly, the NEA responded to the lawsuit on March 7, 2025, by removing the certification requirement that mandates all applicants to “certify” their understanding of Sec. 3(g) of the Executive Order.[10] However, this news is not quite yet the victory that the plaintiffs, and the rest of the theater industry, are seeking. First, the certification requirement is removed only while the case is still pending in the Court.[11] Second, the NEA has refused to remove the eligibility requirement, which withholds funding from any artistic projects that promote gender ideology hostile to the Executive Branch’s perspective.[12] While removing the certification requirement was a step in the right direction, the fight is far from over.
Several other communities outside the arts industry have instigated litigation against Trump’s Executive Order 14168, including health non-profits that provide services to the LGBTQ+ community and incarcerated transgender women seeking access to gender-affirming care.[13] The scope of Executive Order 14168 is dangerous. If the NEA is permitted to continue enforcing discriminatory policies against LGBTQ+ focused theaters, we risk losing out on the stories told by and for transgender and nonbinary folk. It is up to the District Courts to act as the first line of defense against the Executive Branch’s unprecedented attack on the rights of artists across the United States.
[1]Exec. Order No. 14168, 90 Fed. Reg. 8615 (Jan. 30, 2025).
[2]Id.
[3]Id.
[4]Complaint for Declaratory and Injunctive Relief at 2, Rhode Island Latino Arts et al v. National Endowment for the Arts et al, 1:25CV00079.
[5]Id. at 1.
[6]Id.
[7]Id.
[8]Id. at 27—28.
[9]Id. at 28—31.
[10]Press Release, American Civil Liberties Union, In Response to ACLU Lawsuit, National Endowment for the Arts Removes Certification Requirement on Funding Applications (Mar. 7, 2025) (on file with author).
[11]Id.
[12]Id.
[13]Civil and Human Rights Organizations Sue Trump Administration Over Executive Orders Banning Diversity, Equity, Inclusion, Accessibility and Erasing Transgender People, lambda legal (Feb. 19, 2025), https://lambdalegal.org/newsroom/nul_us_20250219_civil-human-rights-orgs-sue-trump-admin-over-eos-banning-dei/’ [https://web.archive.org/web/20250313213354/https://lambdalegal.org/newsroom/nul_us_20250219_civil-human-rights-orgs-sue-trump-admin-over-eos-banning-dei/] [https://perma.cc/JER8-94R6]; Transgender inmates sue Trump, Bureau of Prisons over restricting gender-affirming care, the hill (Mar. 7, 2025), https://thehill.com/homenews/lgbtq/5183692-transgender-inmates-sue-trump-bureau-of-prisons-over-policies-restricting-gender-affirming-care/ [https://web.archive.org/web/20250313213716/https://thehill.com/homenews/lgbtq/5183692-transgender-inmates-sue-trump-bureau-of-prisons-over-policies-restricting-gender-affirming-care/].