A US federal judge on Thursday refused to block the National Endowment for the Arts (NEA) from denying funding to projects deemed to “promote gender ideology,” saying the agency has temporarily abandoned those prohibitions and is in the midst of re-evaluating them.
In a 47-page ruling, Senior US District Judge William E. Smith denied a request for a preliminary injunction from Rhode Island Latino Arts and three other arts organizations seeking immediate relief from an executive order by President Donald Trump that bars the use of federal money to “promote gender ideology.”
While Judge Smith agreed the arts groups demonstrated a “likelihood of success on the merits” for their claims that the order violates the Administrative Procedure Act (APA) and the First Amendment of the US Constitution, he found that the NEA had already stopped enforcing the contested provisions and was engaged in a fast-moving process to decide if, or how, it might implement the presidential directive going forward. Because of that voluntary pause, he ruled, there was no need to impose an injunction immediately.
Smith wrote: “Granting a preliminary injunction in these circumstances would impose significant hardship on the NEA with little practical benefit to Plaintiffs.” He noted that the NEA had “rescinded its implementation of the EO” pending an administrative review slated to conclude this month, adding: “This would rob the NEA of the opportunity to make its own considered decision about whether to implement the EO at all.”
Judge Smith concluded the plaintiffs’ request for an immediate injunction was premature. Yet he agreed that if the NEA re-instated an outright ban on so-called “gender ideology,” it would likely violate both its congressional mandate, focused on “artistic excellence and merit,” and the First Amendment. If the agency again imposes this ban, the judge wrote, the issue could return to court.
Executive Order (EO) 14168 defines “gender ideology” as “replacing the immutable biological reality of sex with an internal, fluid, and subjective sense of self unmoored from biological facts.” Soon after President Donald Trump announced the order, the NEA began requiring applicants for its signature Grants for Arts Projects program to certify they would not use federal funds for work endorsing “gender ideology.” Groups including Rhode Island Latino Arts, National Queer Theater, The Theater Offensive, and the Theatre Communications Group sued, claiming the NEA’s policy would amount to government censorship of art featuring transgender and nonbinary performers or storylines. Within days of the lawsuit’s filing, the NEA rescinded the certification requirement and told applicants it was halting any application of the executive order for at least several weeks.
Executive director of Rhode Island Latino Arts Marta V. Martínez said on Thursday:
We shouldn’t need to negotiate for the right to support and uplift all artists — including transgender and nonbinary artists… This order fails to bring us the clarity we need to apply for funds for projects that allow Latinx artists, especially those who are queer, trans, or nonbinary, to show up as their whole selves without fear of erasure or censorship.
Judge Smith has scheduled a conference in the coming weeks for the parties to discuss next steps. If the NEA concludes it will fully or partially implement the executive order’s ban, the plaintiffs are likely to renew their request for a court order preventing the restriction from taking effect. If the NEA declines to implement the order at all, the controversy may subside, and the case could be dismissed.
