PROVIDENCE, R.I.: In an important victory for First Amendment rights last Friday, Sept. 19, a federal judge in Rhode Island ruled in favor of four arts organizations in their challenge to the National Endowment for the Arts’ (NEA) policy disfavoring grant applications for projects that the government believes “promote gender ideology.” The court has “set aside” the NEA’s current policy implementing the executive order after its ruling determined that it is a viewpoint-based restriction on private speech, exceeds the NEA’s statutory authority, and is “arbitrary and capricious” in violation of the First Amendment and the Administrative Procedure Act (APA). Simply put: The NEA can no longer disfavor any application on the basis that it “promotes gender ideology.”
“The NEA was designed not as an instrument of political communication but as a vehicle for private expression,” U.S. Senior District Court judge William Smith wrote in the ruling. “The Court concludes that the final notice violates the First Amendment because it is a viewpoint-based restriction on private speech.” Smith continued: “There is zero explanation of what it means for a project to ‘promote gender ideology,’ let alone how that concept relates to artistic merit, artistic excellence, general standards of decency, or respect for the diverse beliefs and values of the American public.”
“This decision is a significant victory not only for TCG, our co-plaintiffs, and our member theatres, but also for artists and organizations all across the country,” said Theatre Communications Group (TCG) co-executive directors Alisha Tonsic, Emilya Cachapero, and LeTeshia Ellerson in a message to staff. (TCG publishes American Theatre.) “It affirms our viewpoint that the federal government cannot impose restrictions that challenge free expression, particularly around gender identity.”
The protection applies to all applicants, not only those in this case. The court also prohibited the government from imposing any future policy that disfavors “promoting gender ideology.” This offers added protection and a clear legal roadmap if new restrictions are attempted. The court’s ruling is permanent, though it is possible the government may appeal.
This is the result of action by arts advocates and theatre organizations after the NEA began requiring applicants to attest that they would not promote so-called “gender ideology” in order to be eligible for funding, and would bar any projects that were deemed to do so from getting an award. This suit was filed in March by the ACLU, the ACLU of Rhode Island through cooperating attorney Lynette Labinger and David Cole in the U.S. District Court of Rhode Island, on behalf of Rhode Island Latino Arts (RILA), National Queer Theater (NQT), The Theater Offensive (TTO), and Theatre Communications Group (TCG).
In immediate response to the ACLU’s litigation, the NEA paused the “gender ideology” certification requirement and undertook another decision-making process on how to implement the executive order banning the use of federal funds to “promote gender ideology.” In April, the court held that the NEA’s decision to make any project that promotes “gender ideology” ineligible for funds likely violated the First Amendment and exceeded its statutory authority, but held off issuing an injunction in order to give the agency time to decide whether and how it would implement the executive order. In late June, the ACLU filed a motion asking the court to issue an injunction after the NEA admitted that it would disfavor projects based on whether they “promote” what the government deemed to be “gender ideology.” All case documents can be viewed here.
“This is a victory for arts organizations across the country,” National Queer Theater founding artistic director Adam Odsess-Rubin shared with American Theatre. “The NEA was created to support art from all parts of American society, and we are relieved the judge is affirming our constitutional freedom of speech in this case. We will not allow the trans community to be scapegoated, and we will not be censored. We hope this victory gives artists hope in our continued struggle for equity, and shows arts organizations that we can work together to defend our work in this time of repression and division.”
Rhode Island Latino Arts executive director Marta V. Martínez shared similar sentiments. “This decision affirms what we have always believed: the freedom to create, to express one’s truth, and to tell our stories is a right protected by the First Amendment,” Martínez said in a statement. “As an organization deeply rooted in storytelling, theatre, and the preservation of cultural history, we are relieved and grateful that the courts have recognized the importance of protecting artistic expression for all people, including those in LGBTQ+ communities.”
