First circuit argues over NEA funding “gender ideology”

A three-judge panel of the federal appeals court in Boston heard arguments Wednesday morning (October 7) in a lawsuit which challenges whether President Trump’s executive order saying “Federal funds shall not be used to promote gender ideology” can be applied to arts funding.                

Four theatre groups, including two which are LGBTQ-focused, filed a lawsuit last year, arguing that Executive Order 14168 violates their First Amendment right to freedom of expression.

The executive order, signed in January 2025, is entitled the “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.” It applies to any federal funding at any agency, but the lawsuit – Rhode Island Latino Art v. NEA (National Endowment for the Arts) – focuses on how it affects individual artists and groups.

“This case will have ramifications well beyond just artists, as it will lay out the standards of whether the government can require ideological uniformity as a condition of federal funding,” said Steven Brown, executive director of the ACLU of Rhode Island, in a press statement following argument.

The ACLU filed the lawsuit in support of National Queer Theater, the Boston-based Theater Offensive, the Theater Communications Group, and the Rhode Island Latino Arts group. All four groups had produced programs that included transgender and/or non-binary characters.

Last September, an appointee of President George W. Bush, U.S. Senior District Court Judge William Smith, said the executive order “violates the First Amendment because it is a viewpoint-based restriction on private speech.” Smith said it also violates the federal Administrative Procedures Act, which prescribes rules for creation of regulations which enforce laws and executive orders.

The Trump administration appealed the district court’s ruling to the First Circuit. U.S. Department of Justice attorney Jennifer Utrecht said an NEA arts grant “amounts to government endorsement” of the art, and that the NEA would be compelled to consider Trump’s executive order –among other things – in deciding where to award grants. Other factors, she said, could include such things as how the art reflects changing priorities, such as the 250^th anniversary of the signing of the Declaration of Independence and the upcoming Summer Olympics in Los Angeles in 2028.

Both DOJ’s Utrecht and ACLU senior attorney Vera Eidelman pointed to a 1998 U.S. Supreme Court decision, Karen Finley v. NEA. Finley and three other performance artists who identified as LGBTQ or portrayed LGBTQ issues on stage, said the NEA discriminated against them. The court rejected that argument 8 to 1 (then Justice David Souter was the lone dissent).

“There’s limited funding, and some things get funded and some not,” said Utrecht, echoing the Finley decision.

The panel included First Circuit Chief Judge David Barron (an Obama appointee) and Judges Julie Rikelman and Seth Aframe (Biden appointees).

Opposition to NEA grants for LGBT artists originated in the 1980s, when then U.S. Senator Jesse Helms (R-NC) raised objections repeatedly on the Senate floor to funding for gay photographer Robert Mapplethorpe. In response, some prominent galleries refused to show Mapplethorpe’s work.