A federal court has prohibited the National Endowment for the Arts (NEA) from implementing President Donald Trump’s executive order barring grants to organizations promoting “gender ideology”.
Since Donald Trump reassumed the presidency in January 2025, his administration has been exerting greater control over the cultural institutions of the United States. Earlier in the year, President Trump placed considerable pressure on the National Endowment for the Humanities to the point that its chairwoman, Shelly Lowe, resigned. He also attempted to fire the director of the National Portrait Gallery, Pat Sajet. Many pointed out that the president cannot hire or fire the heads of any of the Smithsonian Institution’s museums. Sensing the growing hostility from the new administration, however, Sajet decided to leave on her own volition several months later to become director of the Milwaukee Art Museum. And of course, the administration has been trying its best to cut funding from the National Endowment for the Arts (NEA). Earlier in the year, a group of private organizations made headlines after announcing they would make significant donations to help the NEA fund some of their Challenge America grants. The Andy Warhol Foundation and the Helen Frankenthaler Foundation have collectively pledged $800,000, while the Mellon Foundation announced it would donate $15 million to the Federation of State Humanities Councils. Mellon Foundation president Phoebe Stein described these funds as “a lifeline for communities across the country who rely on their humanities councils’ programs and grants to fill critical needs and enrich their lives.” However, a federal judge has recently ruled that some of the restrictions placed on NEA grants by the Trump administration are unlawful.
As part of his administration’s cultural policy, Trump has demanded that the NEA add an additional layer of review for grant applicants to ensure that no federal funds are given to support artists or cultural organizations that promote “gender ideology”. This specific restriction was implemented as part of Executive Order No. 14168. Of course, what that rather vague term means is that to receive money from the NEA, an artist is forbidden from shining a light on the lived experiences and difficulties of people whose gender and sexual identities do not comply with the simplistic, reductive concepts of heteronormativity and an unchanging gender binary. The American Civil Liberties Union filed a lawsuit on behalf of several arts organizations that would have much of their funding denied because some of their work pertains to queer and trans people. By denying funds on political or ideological grounds instead of on artistic merit, the ACLU argued that the new NEA policy, as outlined in Executive Order No. 14168, is both unlawful and unconstitutional. And now, a federal judge has agreed with them.
Judge William Smith, an appointee of George W. Bush, ruled that the NEA policy, and therefore the executive order, is a violation of the Administrative Procedure Act (APA). The APA states that the courts must determine when a federal agency has acted “in excess of statutory jurisdiction, authority, or limitations”. In this case, the NEA policy, implemented in accordance with the executive order, violates the act of Congress that established the NEA in 1965. The law explicitly states that grants and other funding are to be dispersed to support “projects and productions which have substantial national or international artistic and cultural significance, giving emphasis to American creativity and cultural diversity”. The law also explicitly states that funding should be given to provide a greater voice to underrepresented or disenfranchised groups; or, to quote the law itself, “a minority, inner city, rural, or tribal community”. The ACLU legal team also referenced the minutes of the congressional debates during the NEA’s creation, noting that the legislators who crafted the law intended for there to be safeguards against government-run cultural institutions from being used for expressly political purposes. By instructing a federal agency to act beyond its purview, Trump’s executive order and, therefore, the NEA policy violate the APA.
Judge Smith also found that the NEA’s policy created by Trump’s executive order violates the First Amendment. Specifically, the new restrictions that the order and the policy implement are “a restriction on artists’ speech, and one that is viewpoint based, because it assigns negative weight to the expression of certain ideas on the issue of gender identity.” Smith went into detail on whether art created with the help of NEA grants or funding is considered government speech or private speech. If it is government speech, then there would be no First Amendment violation. However, he decided that since the NEA has no editorial control, the government has no role in shaping the content or message of these works of art, making NEA-funded works private speech. He therefore declared that the NEA is now “permanently enjoined” from applying “a viewpoint-based standard of review”, and that the arts organizations that the ACLU represented in the case cannot be made to comply with Trump’s executive order when using NEA grants.