A federal judge in Rhode Island handed four arts organizations a victory against the Trump administration in their challenge to the National Endowment for the Arts’ (NEA) implementation of one of the president’s anti-trans executive orders.

In his September 19 decision, district court judge William E. Smith, a George W. Bush appointee, ruled that the NEA’s recent policy requiring all grant applicants to certify that “federal funds shall not be used to promote gender ideology” violates the First Amendment and the Administrative Procedure Act (APA), according to Erin in the Morning.

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President Donald Trump signed Executive Order 14168 on January 20, the first day of his second term in office. The order claims to “defend women’s rights” by declaring that the U.S. will only recognize two sexes, male and female, as determined by biology. Among its anti-trans provisions, the order requires all federal agencies, including the NEA, to “take all necessary steps, as permitted by law, to end the Federal funding” of what it terms “gender ideology” — i.e., the acknowledgement of the existence and rights of transgender and gender-diverse Americans.

As the Rhode Island Current reports, in response to the order, the NEA added a compliance checkbox to its grant applications in February, requiring applicants to certify that grant funds will not be used for projects that “promote gender ideology.”

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The following month, the American Civil Liberties Union (ACLU) filed a lawsuit against the NEA on behalf of lead plaintiff Rhode Island Latino Arts and three other arts organizations that regularly produce LGBTQ+ work. The lawsuit argued that the policy violated the First Amendment, the APA, and the Fifth Amendment. As the Rhode Island Current notes, plaintiffs argued that the policy’s language was unconstitutionally vague, as it did not define what constituted promotion of “gender ideology.” They said the policy targeted a specific viewpoint and would result in organizations either being denied funding or adjusting their First Amendment-protected speech.

As Erin in the Morning reports, in his decision, Smith sided with the arts organizations on the first two counts. Smith ruled that NEA’s policy of considering whether projects “promote gender ideology” in its grant approval process “violates the First Amendment because it is a viewpoint-based restriction on private speech.” Additionally, the policy, which grants NEA’s chairperson sole authority to implement Trump’s anti-trans order, violates the APA by exceeding the NEA chairperson’s authority under the NEA’s authorizing statute, by its “arbitrary and capricious” nature.

“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,” Smith wrote. “In short, the NEA has made no effort to justify its policy on any grounds aside from complying with the EO.”

However, Smith rejected the plaintiffs’ argument that the NEA’s policy was unconstitutionally vague under the Fifth Amendment.

Smith’s ruling “vacates and sets aside” the NEA’s policy and permanently enjoins the agency from implementing a “viewpoint-based standard of review that disfavors applications deemed ‘to promote gender ideology’” and from requiring arts organizations to comply with Trump’s anti-trans executive order when using NEA grant funds.

In a statement, Rhode Island Latino Arts executive director Marta V. Martínez said that the 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.”

“As an organization deeply rooted in storytelling, theater, 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,” Martínez said.

Vera Eidelman, senior staff attorney with the ACLU’s Speech, Privacy, and Technology Project, said the ruling marked “an important victory for freedom of speech and artistic freedom.”

“At a time where the government is using its full weight to try to impose ideological conformity, this order is an important reminder that the First Amendment protects us from exactly that,” Eidelman said in a statement. “Even when the government funds private speech, it does not get to support only those messages that parrot its views.”

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