Federal judge rules action against NEA unnecessary after it backed off bans on gender ideology

A federal judge on Thursday denied a motion to stop the National Endowment for the Arts from barring funds to artists whose projects promote gender ideology, saying the agency no longer was doing it.

Four arts groups sued the NEA last month, seeking a preliminary injunction over what they said were violations of the First Amendment, the Administrative Procedure Act and the Fifth Amendment. The requirements were initially added to grant application forms, following an executive order from President Donald Trump.

U.S. District Judge William Smith acknowledged that plaintiffs “demonstrated a likelihood of success that a ban on gender ideology would be a violation of the First Amendment and the Administrative Procedure Act.” But because the NEA had rescinded the requirement about a week after the lawsuit was filed, Smith said an “injunction is not in the public interest at this time.”

“Granting a preliminary injunction in these circumstances would impose significant hardship on the NEA with little practical benefit to Plaintiffs,” Smith wrote.

“If the Court enjoins the NEA from imposing an eligibility bar at this juncture, it will in effect short circuit the ongoing administrative review process set to conclude in a matter of days,” he continued. “This would rob the NEA of the opportunity to make its own considered decision about whether to implement the EO at all.”

The government argued against the injunction, since grantees do not have to certify they are complying with the executive order from Trump and since the NEA no longer is applying the order in grant-making decisions. It also said it is in the midst of an administrative proceeding to determine if it will implement the executive order and, if so, how.

The American Civil Liberties Union, which sued on behalf of the arts groups, acknowledged that the NEA no longer requires artists to promise that their projects aren’t promoting gender ideology. But it says the NEA still has criteria that refuses funding to projects that appear to promote this concept. It also expressed concerns that the NEA could eventually reinstate the ban.

Trump’s executive order titled “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government” calls for denying federal money to any programs that “promote gender ideology.”

One of the groups, Rhode Island Latino Arts, was planning to apply for funding to support a production of “Faust,” for which it considered casting a nonbinary actor, or a storytelling program which in the past has included discussions of LGBTQ topics.

“We shouldn’t need to negotiate for the right to support and uplift all artists — including transgender and nonbinary artists,” Marta V. Martinez, executive director of Rhode Island Latino Arts, said Thursday. “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 of censorship.”

Another group, the New York-based National Queer Theater, wants to apply for funding for the Criminal Queerness Festival, a theater festival featuring work from playwrights from countries where promoting LGBTQ activities is prohibited or dangerous.