The American Civil Liberties Union has filed suit in the U.S. District Court of Rhode Island on behalf of several arts organizations over new requirements from the Trump administration that prohibit federal funds being used to “promote gender ideology.”
Applicants for National Endowment for the Arts grants must now tick a box on their application form attesting that their proposed project complies with the new mandate.
“This is not just an arts issue, it’s a civil rights issue,” said Kristy DuBois, executive director of the Providence-based Choreography Project.
“Here in Rhode Island, this executive order is a direct threat to artists, choreographers and organizations like ours that rely on federal funding to sustain their work,” she said.
According to ACLU of Rhode Island Executive Director Steven Brown, the NEA is not supposed to approve projects based on their political content.
“The criteria that the NEA is supposed to use in reviewing grants is based on artistic merit and excellence. It’s not supposed to use ideological considerations,” Brown said.
The plaintiffs in the suit include several arts organizations that promote the work of LGBTQ+ artists.
Rhode Island Latino Arts primarily supports the work of Latino artists. The Theatre Offensive in Boston presents work “by, for and about queer and trans people of color.” And the National Queer Theatre in New York curates an annual Criminal Queerness Festival, celebrating the work of LGBTQ artists in countries where their sexuality is illegal.
“Theaters should not have to choose between funding and artistic freedom,” said Emilya Cachapero, co-executive director of the New York-based Theatre Communications Group, another of the plaintiffs in the case.
“In some ways, I’m flattered that our mere existence outside the binary is capable of causing such a fuss,” said Jess Ducey, board co-chair of National Queer Theatre.
Giselle Byrd, executive director of The Theatre Offensive, said the new rules could create a slippery slope of censorship.
“First it starts here, and then it’ll start permeating through different spheres, so some of your most beloved pieces — such as Kinky Boots or La Cage Aux Folles — will no longer be allowed to be able to be seen or shared,” she said.
The groups are hoping the court will grant a preliminary injunction ahead of a March 24 application deadline for NEA grants.
Most of the groups have won NEA grants in the past but worry that the new rules would disqualify them from receiving further funds.
The ACLU says other groups are self-censoring in their applications, either not identifying works that might not conform to the new federal guidelines or proposing other, less political topics.
That, they say, is likely to have a chilling effect on the arts which have long been a medium for exploring difference.
“This is clearly impacting their decision making on what they need to do in order to get a grant,” said Lynette Labinger, the ACLU cooperating attorney bringing the case.
Congress created the NEA in 1965 as part of President Lyndon Johnson’s Great Society programs. Its mission was “to foster the excellence, diversity, and vitality of the arts in the United States.”
This is not the first time that NEA funding decisions have provoked political controversy.
In May 1989, evangelical Christians objected to the inclusion of Andres Serrano’s “Piss Christ” in an NEA-funded exhibition in North Carolina. Serrano’s photograph features a crucifix immersed in the artist’s urine.
The Christian right also condemned NEA funding of sexually-explicit work by artists such as Robert Mapplethorpe and Karen Finley. In the wake of the uproar, Congress passed a law requiring that the agency only fund works that met the “general standards of decency and respect for the diverse beliefs of the American public.”
Finley, a performance artist whose work courts controversial themes, and several other artists whose work had been rejected for NEA grants filed suit and won. But in 1998, the U.S. Supreme Court in an 8-to-1 decision reversed the lower court ruling and endorsed the NEA’s rejection of the controversial artwork.
Writing for the majority, Justice Sandra Day O’Conner ruled that “the First Amendment protects artists’ rights to express themselves as indecently and disrespectfully as they like, but does not compel the Government to fund that speech.”
The NEA did not return phone calls seeking comment on the new lawsuit filed by the ACLU.
