EDITOR’S NOTE: Claire Willett is a longtime arts grant writer and has written a number of National Endowment for the Arts grants. She was, in fact, in the middle of writing one when the changes she discusses below dropped in her lap.

UPDATES on March 11 after the story was published:

• The following text was added to the NEA’s Assurance of Compliance page after the executive order language about gender ideology: “PLEASE NOTE: Pending the outcome of litigation in the United States District Court of Rhode Island, Case No.1:25-cv-00079-WES-PAS, the NEA is not currently requiring any grantee to make any ‘certification’ or other representation pursuant to Executive Order 14168.”
• The deadline for Part II of NEA’s GAP grants has been changed to April 7 (part I is still due March 11).
• Opera America reports that the hearing for the ACLU case is scheduled for March 27.

***

On March 6, a coalition of theatre companies joined with the American Civil Liberties Union to file a legal action against the National Endowment for the Arts, accusing the organization of overstepping its charter in demanding that grant applicants comply with President Trump’s recent executive order attacking transgender and nonbinary people. On March 7, the District Court of Rhode Island agreed, granting a temporary injunction for the current grant cycle while the litigation is still pending.

What does this mean, how did we get here, and what happens now? 

Attacks on transgender and nonbinary people have been ramping up throughout the federal government since Trump’s inauguration, everywhere from the National Institutes of Health to the Department of Defense. For the most part, we tend to learn about those policy changes from the news. Maybe a journalist reports a scoop from an inside source; maybe Trump, Elon Musk, or an agency head makes a sweeping public declaration. But what happened at the NEA is a little different, because this was a story which was broken first by artists. 

A significant overhaul of the NEA’s guidelines took place in the middle of an open application cycle, where it was spotted first by people in the middle of writing an application. And while some changes were announced by press releases and discussed openly in informational webinars, others weren’t; they were buried deep in the fine print, where initially only grant writers could find them. In fact, the NEA quietly embedded a clause in its grant terms which seemed to effectively bar trans or nonbinary artists from applying for grants… and said nothing about it until now.

This is a story in which arts grant writers are the heroes. To understand how we arrived at a moment where the NEA’s own grant recipients are suing them, let me take you back a month and give you the grant writer’s-eye view of how the whole thing unfolded. Pour yourself another cup of coffee and settle in; this is long, but I promise it’s juicy, and it’s already having a significant effect on arts organizations right here in Oregon.

February 6

The NEA announced a wave of changes to its current grant cycle, which you probably heard about in the news. (ArtsWatch covered them here.) A few of them were minor housekeeping changes, like the fact that your organization now needs at least five years of history to apply, and pushing the deadline from February to March. Two key changes jumped out right away, which NEA spokespeople have repeatedly insisted, in multiple forums, are wholly unrelated.

The first was suspending the annual Challenge America program, which provided $10,000 grants to underserved communities with a more streamlined application process and a shorter turnaround than the main Grants for Arts Projects (GAP). These grants often support free public programs, or opportunities specific to populations with limited arts access, like low-income communities or people with disabilities. The last round, announced just a few months ago, included Oregon nonprofits like The Immigrant Story (Beaverton), Central Oregon Community College (Bend), #instaballet (Eugene), Jazz Society of Oregon (Portland), Portland Columbia Symphony (Portland), Risk/Reward (Portland), and Write Around Portland.

Trump’s NEA appointee Mary Anne Carter, who held this same post as Chairman during his previous administration, framed this as an efficiency measure, as did both the press release and a February 18th webinar; staff were feeling overburdened by their workload, applicants were told, and a temporary choice was made to eliminate one grant program in order to buy them some more breathing room. “At the first all-staff meeting, I challenged the staff to come up with ideas on how we can be more effective, more efficient, and how our resources could be used better,” Carter said in a February 21st Zoom conversation with Nina Ozlu Tunceli of Americans for the Arts. “Because a lot of the staff felt that they were pulled in so many directions, and had maybe gotten a bit away from the core product of what we do.” In the grants webinar, Arts Education program director Michelle Hoffman reiterated this, saying “Rolling Challenge America into GAP was one of the staff’s recommendations. This is a change the agency has made in the past when it needed to focus staff resources on our grantmaking mission.”

The second change you may have heard about was a significant rewrite to one section of the GAP grant guidelines document, emphasizing “Areas of Particular Interest,” which garnered a great deal of attention because of two suggestions which stood out starkly on a list of four bullet points: projects which explore the impacts of AI (albeit “in ways that are consistent with valuing human artistry”), and projects “honoring the semiquincentennial of the United States of America.” 

Both of these were already included in the grant guidelines before the presidential transition, and NEA staff have been quick to correct anyone implying otherwise. Mary Anne Carter spoke rather sarcastically about media coverage which framed the changes as a choice to cut funding from marginalized communities and move it directly to what they call the “America250 project.” 

But context matters here – under an agency head appointed by a Democratic president, would artists be more free to have different conversations, ask different questions, challenge different assumptions or beliefs, on a topic as broad as what 250 years of America means? Would a provocative, boundary-pushing work of art exploring the complex relationship between human beings and technology be rejected if it took an anti-AI stance that Elon Musk would object to? The text of those two bullet points hasn’t changed, but everything around them has, and it’s disingenuous to claim they mean what they meant a year ago.

It’s also worth drawing some attention to the bullet points that were deleted. A few of the “Areas of Particular Interest” which were highlighted in the old guidelines and removed in the new ones include projects that:

• “Provide direct compensation to artists, makers, art collectives, and/or arts workers for their participation”; 
• “Lead to a better understanding of and response to opportunities and risks that may impact organizational effectiveness and artists’ livelihoods (e.g., national emergencies, natural disasters, emergent technology, etc.)”; 
• “Use artistic and creative practices to support individuals and groups in telling their story to foster mutual understanding”; 
• “Engage in arts and cultural practices to overcome social isolation or loneliness”; and 
• “Foster belonging and social connection as a means toward improved health and well-being.”

No public communication I was able to find addressed any of these suggestions, or why they were cut; staff repeatedly emphasized that the America250 project had been a topic of interest for years, that it was of special interest in the 2026 grant cycle because that was the date of the actual anniversary, that applications on all kinds of other topics and themes were, of course, still welcome, and that none of this had anything to do with politics at all. 

The only confirmation to the contrary I was able to find came from a throwaway remark from Carter in her Zoom conversation with Americans for the Arts; she reiterated once more that rolling Challenge America into GAP was designed to ease the workload of a staff for whom she had nothing but praise, but then seemed to muddy the waters a bit:

“I just want to assure your audience all applications are viewed independently of other applications. So no one is at a disadvantage by being rolled into GAP. And in fact, they can actually ask for a larger grant if they so choose, where Challenge America grants are limited to $10,000. And so again, that idea came from the staff. And so we rolled it in. But because we were changing things, and we changed the guidelines, and the reason we changed the guidelines is we have a new president. And the president wanted to go in a different direction than the previous administration went. So we rewrote the guidelines.”

This seems to contradict the assertion that the changes resulted from a staff-led initiative which was primarily about workload, and, while they might have been unfortunately timed with the new administration, the changes weren’t directed by it for any kind of ideological reason. So far, the NEA has not responded to multiple requests for clarification on this remark. 

The elimination of Challenge America, the confusing rewrite of the suggested topics section, and the new deadline caused immediate consternation; but at least those changes were publicly announced. The policy change which prompted the current wave of backlash, culminating in last week’s lawsuit, dropped the next day. And a lot more quietly.

February 7

If you’ve never written a federal government grant, yours is a blessed existence, since they’re reliably the most complicated thing grantwriters have on their annual calendar. The NEA is no exception, despite having a comparatively tiny chunk of the annual budget to hand out. These grants are an exercise in reading the fine print. First, you make your way through a PDF guidelines document containing a general overview of the application process, and then a second one with all the details specific to your discipline. Both are about forty pages. Scattered throughout, you’ll see links to the NEA’s “Assurance of Compliances” page, a long slew of legalese which is mostly focused on nondiscrimination; certifying, for example, that your work is accessible to people with disabilities as required by the ADA, doesn’t discriminate by gender as required by Title IX, etc. 

This language almost never changes. 

And then suddenly it did.

On the evening of Friday, February 7, far too late to reach anybody at the NEA to demand an explanation, screencaps began circulating on social media among artists and arts administrators which showed a new and extremely alarming set of bullet points on this page, crammed in cheek-by-jowl with all that anti-discrimination language which it entirely contradicted. 

The text read as follows:

“In addition, the applicant agrees that, if the applicant is selected and becomes a NEA grant recipient:

• The applicant will comply with all applicable Executive Orders while the award is being administered. Executive orders are posted at whitehouse.gov/presidential-actions.
• The applicant’s compliance in all respects with all applicable Federal anti-discrimination laws is material to the U.S. Government’s payment decisions for purposes of section 3729(b)(4) of title 31, United States Code, pursuant to Executive Order No. 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity, dated January 21, 2025.
• The applicant will not operate any programs promoting ‘diversity, equity, and inclusion’ (DEI) that violate any applicable Federal anti-discrimination laws, in accordance with Executive Order No. 14173. 
• The applicant understands that federal funds shall not be used to promote gender ideology, pursuant to Executive Order No. 14168, Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.”

(By the way, a word on Trumpian terminology, in the words of Boston Globe deputy managing editor Jeneé Osterheldt, who expressed it quite well: “We’re using this term because it’s what the executive order and NEA are touting. We want readers to know ‘gender ideology’ is used with hateful intention to assert that LGBTQ+, specifically trans, nonbinary, and gender expansive folk, do not have natural identities and are an ideological movement.”)

February 10-18

The backlash to this new language was immediate and explosive. 

The following Monday morning, The New Harmony Project – a playwright festival in Indianapolis that received $40,000 from the NEA last year – fired off a scorching open letter titled “Our Values Are Not For Sale,” stating, “At a time when racist, transphobic, and bigoted voices are being amplified at the highest levels of the federal government, The New Harmony Project will continue to be a just, equitable, anti-racist, and anti-oppressive organization.” They also made a point to draw attention to the first of those four bullets: the demand that artists comply not merely with the executive orders quoted below it, but any others which might conceivably appear in the future. “Given the amount of bigoted and hateful rhetoric coming from the administration in just its first month,” they pointed out, “how could any organization committed to anti-racism and equity make that agreement?”

Other artists and arts organizations began to follow suit as word spread. The Playwrights Center and the Guthrie Theatre, both in Minneapolis, rejected $35,000 and $40,000 respectively which they’d just been awarded, rather than disavow their own commitment to equity-centered work. Arts organizations in Chicago took their concerns to local media about whether the grants they’d already been promised were going to show up. And in the absence of any other forum to ask questions directly to NEA staff, the scheduled webinar on February 18th to go over the new grant guidelines filled up so fast they had to cut off RSVPs.

Perhaps unsurprisingly, the webinar was tightly controlled, with presenters clearly reading from a script. They confirmed that they did receive many questions about the executive orders, but they didn’t stray from the party line: namely, that anyone who attributed political motivations to them was making something out of nothing. Arts Education program director Michelle Hoffman addressed it as follows: “We have received many questions from applicants about the changes to the Assurance of Compliance. The Assurance is a longstanding legal requirement that all recipients of federal funds comply with applicable federal anti-discrimination laws, regulations and executive orders… All applicants for federal funding programs will continue to be required to comply with these terms. In accordance with the President’s Executive Orders, the NEA will not fund projects that include DEI activities. Applicants must certify that they do not operate any programs promoting DEI that violate federal anti-discrimination laws, including programs outside the scope of their NEA project.” 

This is the same basic language used by NEA spokespeople on the few occasions where the agency has commented for a news story, and it seems calculated to frame the backlash as hysterical or exaggerated, reiterating that these are the rules and these have always been the rules. “It is a longstanding legal requirement that all recipients of federal funds comply with applicable federal anti-discrimination laws, regulations, and executive orders,” they stated to Playbill Magazine. “The noted legal requirements simply highlight the new executive order.”

If you’re starting to notice that the executive order about “gender ideology” is conspicuously absent from all this, you’ve spotted the same thing I did. The word “gender” appears nowhere in the 28-page document containing the webinar’s full slide deck and transcript. Over the past few weeks, I’ve been attempting to get to the bottom of an inexplicably difficult question: namely, why nobody at the NEA ever mentioned trans people. 

The two new bullet points about equity were hand waved away, using the Trump administration’s definition of DEI as, essentially, trying to be so inclusive that you become exclusive. The example Carter used in her Zoom chat was of a hypothetical Hispanic youth music organization that wouldn’t let a Black child join. But the bullet point right below it, with its prohibition on “gender ideology,” was never mentioned anywhere. It was not mentioned in any public statements by media spokeswoman Elizabeth Auclair I was able to find. Neither was it brought up in the grant guidelines webinar, nor in the Americans for the Arts Zoom (Carter wasn’t even asked the question, a choice which garnered an explosive reaction in the audience chat once it was opened). 

I’ve been attempting to contact the NEA, legislators, and arts agencies with government affairs officers, to try to get to the bottom of the NEA’s absolute silence on trans people at a time when they’re under attack throughout the whole administration. When I emailed the NEA to request a link to the webinar recording, I was told “If you still have questions after watching the webinar, please feel free to reach back out.” When I reached back out to ask why the “gender ideology” language was absent, I received no response.

Frustration from artists on this topic continued to mount. The same day as the webinar, New York-based stage director Annie Dorsen sent an open letter to 26 NEA officials signed by over 450 artists, including playwrights like Paula Vogel and Lynn Nottage, calling for them to reverse this position. The letter, which can be read in full here, forcefully opposes “this betrayal of the Endowment’s mission” and calls for the executive order language to be removed. “The arts have a particularly important role to play in times of political crisis,” writes Dorsen. “When national identities fracture and the public sphere shrinks or becomes increasingly contentious, the arts serve as an indispensable source of memory, imagination, and envisioning. The arts community, which the NEA both supports and is a part of, must stand together in the face of those who would erase our memories, cramp our imaginations, and blinker our vision.”

As reported in The New York Times, NEA spokeswoman Elizabeth Auclair responded by denying that the agency had received any such letter and reiterating, once more, that “presidential executive orders have the full force and effect of law and within the executive branch must be implemented consistent with applicable law. The National Endowment for the Arts is a federal agency and will fully comply with the law.”

February 21

Only a few days later, a successful challenge to Trump’s executive order prohibiting DEI programs by any federal agencies led to a preliminary injunction being issued on February 21 by the US District Court of Maryland, the first attack to successfully land. The NEA hastily tacked on an addendum to the two bullet points about DEI on their Assurance of Compliances page, stating that “the NEA is not currently requiring any grantee or contractor to make any ‘certification’ or other representation pursuant to Executive Order No. 14173. This term will not apply to your award as long as this preliminary injunction remains in effect.” 

In other words, the ban on equity-based arts programming is still the NEA’s official policy, at least as far as the grant cycle that’s open right now; they just can’t ask you to prove it.

Okay, but what about people who applied last summer and are waiting to hear back in June? What about the people who just got their award letters in December? Well, that’s even harder to figure out. That Zoom conversation between Mary Anne Carter and Nina Ozlu Tunceli of Americans for the Arts took place the same day as the District Court’s injunction. Carter stated that she couldn’t answer any questions about how this affected open or pending grants, or how it might affect the state agencies that are sub-granted funds from the NEA: “Our legal counsel is looking at that because that question obviously has come to us as well. And when we do have an answer, we will post that under our FAQs. But I just don’t have an answer to that today.” The implication seems to be that these changes – which are, again, to the NEA’s terms of legal compliance – were drafted and published before they had fully been reviewed by legal counsel, which seems unlikely to be standard practice. No one seems willing to say who ordered them, who wrote them, or who put them there. 

The NEA did not respond to multiple requests for comment on this topic, and even the arts organizations whose grants were just announced are struggling to get answers about how these changes might impact a proposal that was already submitted and approved, but isn’t in compliance with the executive orders. Portland’s Profile Theatre was notified in December that they’d been approved for a $35,000 grant to support their Playwright Festival 2025. Artistic Director Josh Hecht said that the NEA’s head of grant programs for theatre, Ian Julian, had been very responsive and gave them no indication for concern. Still, Hecht says, the timeline for NEA grant decisions isn’t proceeding at its usual pace. Ordinarily, after offer letters are sent out, approved grants are sent to review committees for a final round “to make sure all the T’s are crossed and the I’s are dotted,” as Hecht explained, and to certify that organizations are in compliance with all NEA rules and regulations. Then they’re moved from “offered” to “awarded,” which he says usually happens in February, but hasn’t happened as yet. 

The NEA, unlike most private foundations, only pays out its grants as reimbursements; you do the work and then send in your receipts to get the check, rather than getting the check up front. You can only request the funding in advance if you need to start spending it within 30 days of the award letter. However, you can’t do that until the review has been completed and you’re notified that the grant is officially being awarded to you. Hecht described the situation as “not concerning yet,” but there’s no way to know whether this is a benign administrative holdup due to chaos at the NEA, or a targeted review of applications which might contain content the executive orders prohibit. And with the event scheduled for June, he’s watching the clock; the NEA grant covers half the total budget, and they’re ready to start spending money on it now, so the delayed timeline makes him nervous. “I think I am preparing for not receiving that funding,” he says. “But I haven’t received any information that would lead me to know that. I’m still hoping that they will honor what the review panels have advised them to do.”

The Milagro Theatre Group appears to be in a similar boat. They were awarded a $15,000 GAP grant to support their upcoming production of a home what howls (or the house what was ravine) by Mexican-American playwright Matthew Paul Olmos, opening May 1. The work is described as “a modern myth drawn from the real life struggles of displaced communities around the globe” and “a lyrically-rendered quest of youth activism standing against forces of injustice.” But Executive Director Dañel Malán-González says that despite also receiving an offer letter in December, their application now has a note in the NEA grants portal which says it’s “still being reviewed.” No one has reached out to clarify whether this has anything to do with the executive orders, whether they’re still approved, or whether they’ve been kicked back to pending status, and staff haven’t responded to her emails. 

Contacting the NEA directly is more complicated than it used to be, too. Around the same time as the grants policy changes, they also restructured their staff directory. Rather than direct emails and phone numbers for each individual in a given department, now the only contact information listed is a generic mailbox for the departments. NEA staff did not respond to a request for comment about this, and it’s hard to know whether it’s well-intentioned (ensuring that all communication is filtered for safety, thereby protecting public employees from bombardment and harassment by DOGE staffers or other trolls with an anti-government agenda), or concerning (prohibiting direct person-to-person contact between NEA staff members and the public without a manager reading over their shoulder to make sure they stay on message).

In Oregon, 27 artists and organizations were promised over half a million dollars in NEA funding in the current cycle, as of a press release dated January 10, 2025. The list includes two writers awarded $25,000 literary fellowships, arts agency grants to Lane County and Washington County, and both GAP and Challenge America grants for arts organizations across the state. The text of the new executive orders invites a great deal of confusion about whether projects that were just approved for grants would be funded again if they applied now.

For example, is Portland Playhouse allowed to produce August Wilson’s Joe Turner’s Come and Gone, a play with only one white character, if audience members of any race or ethnicity can buy a ticket to see it? Does that count as “inclusive to the point of exclusivity,” as Trump’s administration defines DEI, or not? What about the Jordan Schnitzer Museum of Art presenting a retrospective of painter James Lavadour of the Walla Walla tribe, or Northwest Children’s Theatre producing the world premiere of a new work celebrating Jewish folklore? Does uplifting the voices of artists from one specific group – formerly a pillar of the NEA’s mission – now count against you?

And that’s just the folks who received their letter in this cycle. ArtsWatch has already reported on Cappella Romana, who were awarded a grant last spring and were just getting ready to collect their funds when the Trump administration’s funding freeze left them high and dry, unsure whether they’d even be able to continue with their concert series until the grant finally arrived. The May 2024 press release from the NEA describes their project as “the presentation of concerts and educational activities as part of the series Black Voices in Orthodox Music,” which makes it impossible to ignore the question of whether the delay traced back to the same kind of keyword searching for equity language we’ve seen repeatedly in the news as science and medical programs get shut down.

March 6

After a month of increasing frustration across the arts sector about both the NEA’s policy changes and their lack of clarity in explaining them, last week brought a lightning-fast flurry of new developments, all pointed in a decidedly more hopeful direction. I’ve been asking the NEA repeatedly to address their silence on trans people, and I suspect part of the reason for their lack of response was the knowledge that legal action was brewing; counsel is probably telling everyone not to say anything to grant writers from Portland whose main qualification for the journalism post they’re currently holding is having also written a time travel book about Watergate heavily influenced by All the President’s Men.

A lawsuit was filed in the U.S. District Court of Rhode Island by the American Civil Liberties Union on behalf of four plaintiffs: Rhode Island Latino Arts (RILA), based in Providence; National Queer Theater (NQT), based in New York City; The Theater Offensive (TTO), based in Boston; and Theatre Communications Group (TCG), the national service organization for U.S. theatres. TCG’s Erica Lauren Ortiz, Lead of Advocacy & Governance Programs, was one of the arts community leaders who was first circulating the screencap of the new executive order language the night it dropped. It’s clear TCG was on this from the very beginning, and while I don’t have any information as to whether they were first to make contact with the ACLU and get the wheels turning on this, if it turns out that they were I won’t be surprised.

The full filing of the lawsuit is available to read here on the ACLU of Rhode Island’s website, and this article from the magazine American Theatre provides a good overview. Here are the nuts and bolts:

The lawsuit is specifically focused on the executive order about “gender ideology,” the one previous legal injunctions haven’t addressed. All four plaintiffs are past NEA grantees. Says the filing, “They are each committed to creating, producing, and promoting art that, among other things, affirms the equal dignity of all people – regardless of race, sex, religion, sexuality, or gender identity. In particular, they have created and promoted art in the past that promotes and affirms the lived experiences of transgender and nonbinary people, by casting transgender and nonbinary actors, and by promoting and producing art that features transgender and nonbinary themes.”

All four were planning to apply in the current cycle and are now unable to determine whether their work was permissible under the new guidelines, which they described as “an unlawful and unconstitutional exercise of executive power that has sowed chaos in the funding of arts projects across the United States, causing grievous irreparable harm to Plaintiffs and other organizations.”

The lawsuit claims that adding Trump’s executive order language to NEA grant guidelines effectively adds an ideological metric to what are supposed to be merit-based decisions. It calls into question whether art the NEA funded in the past could be funded now, cites the confusion caused by their lack of clear communication about what any of these terms mean, and demands that the whole thing be thrown out:

“The NEA’s ‘gender ideology’ prohibition is contrary to the agency’s governing statute, arbitrary and capricious, and violates the First and Fifth Amendments by imposing a vague and viewpoint-based restriction on artists’ speech. Plaintiffs request that the Court declare the ‘gender ideology’ prohibition unlawful.”

Even without a legal background, this is a juicy read, and the angle of their case is a fascinating one. The defendants named are both the NEA as an agency, and Mary Anne Carter in her capacity as its leader, and the accusation is basically that they’re betraying the mission upon which the agency was founded. The filing covers a fair bit of historical ground dating back to the NEA’s inception in 1965, emphasizing points along the way where guardrails were put in place to prevent exactly this outcome, where the political ideology of one individual president or party restricts what kind of art their grants could fund, rather than rewarding excellence or innovation. They quote one of the members of Congress who voted to approve the agency’s creation describing its role as government support for the arts, but not control. The final determinations on funding were always meant to rest with experts in the field. “Congress made the NEA an agency of arts professionals guided by artistic merit rather than of politicians who might be driven by political concerns,” reads the filing. “It required that the NEA’s decisionmakers – the Chair and the National Council on the Arts – be experts in the arts.”

This might be construed as a subtle dig at Carter, whose professional background includes stints with former Florida Governor Rick Scott and the conservative Heritage Foundation. In her webinar, the chief qualification she cited for the post she currently holds was a daughter who studies dance.

The filing also quotes many of the members of Congress who voted upon the approval of the NEA’s creation and celebrated it as vital to freedom of expression. This section from the 1965 Senate Report is worth quoting in full:

“It is the intent of the committee that in the administration of this act there be given the fullest attention to freedom of artistic and humanistic expression. One of the artist’s and humanist’s great values to society is the mirror of self-examination which they raise so that society can become aware of its shortcomings as well as its strengths… Countless times in history artists and humanists who were vilified by their contemporaries because of their innovations in style or mode of expression have become prophets to a later age. Therefore, the committee affirms that the intent of this act should be the encouragement of free inquiry and expression… conformity for its own sake is not to be encouraged, and… no undue preference should be given to any particular style or school of thought or expression.”

The filing also references the controversy around the 1990 Congressional appropriations bill, where Republican opposition to grant-funded works of art (specifically Robert Mapplethorpe’s homoerotic photography and Andres Serrano’s “Piss Christ” installation) led to the NEA adding an “indecency” clause to their grant terms. It’s been challenged in the courts many times over the years, and, while ultimately it’s still in there, they’ve backed away from enforcing it, and reiterated many times that it’s not to be used as “viewpoint discrimination” in the assessment of a project’s merit. 

“This gag on artists’ speech has had a ripple effect across the entire art world, from Broadway to community arts centers,” said Vera Eidelman, senior staff attorney at the ACLU, to American Theatre. “Grants from the NEA are supposed to be about one thing: artistic excellence. Blocking eligibility for anyone who expresses a message the government doesn’t like runs directly counter to the NEA’s purpose, the First Amendment’s prohibition on viewpoint-based regulation, and the role of art in our society.”

The filing then goes into a description of the GAP grant application process, how it works, and the basic deadlines and procedures, emphasizing that at the end there’s a box you have to check saying that you’ve done all your due diligence and are in line with all the NEA’s rules: “Accordingly, by agreeing to the certification when submitting the GAP application, an applicant certifies their agreement with the Assurance of Compliance.” The filing reiterates the NEA’s own language that they have the right to conduct reviews of applicant organizations to ensure they’re complying with executive orders, that it can terminate the award and demand the money back if you are not, and that “the applicant’s assurance of compliance is subject to judicial enforcement.”

The next section of the filing, elucidating the harm to each plaintiff, goes into great detail about what all four companies had planned to do with their NEA grant and how they’d be forced to pivot if no injunction was granted. National Queer Theater and The Theater Offensive state that they plan to check the box because they have to, otherwise the grant won’t submit, but that they plan in their application to forcefully express their objection to it, their refusal to comply with its terms, and their belief that it’s unconstitutional and unenforceable. Rhode Island Latino Arts plans to apply in this cycle for a different project than the one they’d initially intended, a production of Faust starring a nonbinary actor. Theatre Communications Group is waiting for the next cycle in July to determine how to proceed. All of them speak forcefully and eloquently about the confusion, frustration, and negative impacts of these changes. TCG cites repeated questions they’ve received from their members about whether they should be hiring legal counsel, while TTO references the still-unanswered question about whether simply casting a transgender or nonbinary actor counts as “promoting gender ideology.”

The first claim made in the filing is that “Defendants’ action exceeds the NEA’s statutory authority under its enabling statute, the National Endowment for the Arts and Humanities Act of 1965… The Act explicitly identifies one category of speech ineligible for funding – obscenity. The Act therefore does not authorize the NEA to render any other categories – or viewpoints – of speech ineligible for funding. Defendants’ actions exceed their statutory authority under the Act, and the Court must hold them unlawful and set them aside.” 

The second claim is that their actions in this case are “arbitrary and capricious,” and should be set aside on those grounds too: “Defendants have failed to adequately justify their action; have relied on factors Congress did not authorize them to consider; have failed to consider important aspects of the problem; and have failed to acknowledge or justify their change of position.” They also claim that the new terms are unconstitutional and violate the First Amendment, as well as the Due Process Clause of the Fifth Amendment, which “prohibits laws that are unconstitutionally vague, and applies with particular force where government regulations affect speech, out of concern that vague regulations will chill protected speech by causing individuals to steer clear of the prohibited zone.” 

Specifically, they request the courts to demand that the NEA vacate and set aside the new Assurance of Compliance terms, along with any other attempts to enforce Executive Order 14168; to stop them from taking any other action contrary to making their decisions solely based on artistic merit; and to cover their legal fees. 

The very same day the lawsuit was announced, another national coalition of theatres including Portland Center Stage, issued a joint statement reaffirming their commitment to equity in their work, refusing to comply with the NEA’s guidelines, and stating that they would be petitioning the NEA to remove these guidelines altogether. In addition to PCS, the group includes The Public Theater in New York, New York Theatre Workshop, and Long Wharf Theatre in Connecticut. “We are confident in the legal foundation of our Diversity, Equity, and Inclusion initiatives and remain steadfast and collectively committed to advancing this work,” the statement says. “We will continue to uplift the work of transgender, non-binary, and queer artists and offer all our venues and programs for their stories. We will not endorse or agree to the NEA guidelines that seek to suppress or limit those efforts.” 

(I spoke to PCS Artistic Director Marissa Wolf about the process leading up to the letter, so ArtsWatch will have more to come on that topic, as well as how other Portland arts organizations with NEA grants are responding to these changes.)

March 7

The very next day, the NEA agreed to a temporary suspension of the terms. You can read their brief 2-page statement here, and it’s pretty interesting, too. It states that “No later than March 11, 2025, senior leadership at the NEA will approve the removal of the new language requiring compliance with E.O. 14168 in its Assurance of Compliance until the conclusion of this litigation” and that “The NEA intends to no longer require applicants to certify their compliance with E.O. 14168 while the outcome of this litigation is pending.” 

It was submitted by Ann Eilers, Deputy Chair for Management and Budget at the NEA, and it seems quite pointedly to distance herself from the controversy: “I supervise the NEA Office of Grants Management, which has the primary responsibility for issuing and processing the NEA’s financial assistance awards approved by the NEA Chair in conformance with Agency legislation, policies and procedures, and applicable federal laws, executive orders, rules, and regulations. The Office of Grants Management does not draft or issue funding program guidelines, oversee solicitations, review, or recommend for funding any applications/nominations/proposals submitted to the agency under any funding opportunity… I am aware that on February 6, 2025, the NEA updated the Assurance of Compliance to ensure applicants’ compliance with E.O. 14168. I do not manage the office that identifies updated language or processes these changes.”

As far as what happens next, the outcome isn’t entirely clear. Part I of this cycle’s application is due March 11, and Part II on March 24. The NEA has already been forced by a previous injunction to agree they won’t enforce the new executive order language about DEI in this grant cycle, and now the same terms will apply to the executive order language about gender.

That seems to mean that grant applicants can go ahead and apply for the projects they had planned; but the injunction is temporary. If it’s decided in the Trump administration’s favor before the March 24th deadline, then the fears expressed by all four plaintiffs – along with all the other arts organizations in America who support the rights and uplift the voices of transgender, nonbinary, and gender-nonconforming artists, and the trans community as a whole – might become very real. But the fact that the NEA agreed to the temporary injunction right away may indicate they know they don’t have a leg to stand on, and a hopeful outcome might be in sight more quickly than we think.

“And I will leave you with this,” Mary Anne Carter said in closing in her webinar to over 1700 Americans for the Arts attendees. “I believe, and everyone at the agency believes, that every American in every corner of the nation should have access to arts programming. And we’re committed to that.”

The lawsuit which names her as a defendant might be what it takes to make that come true.