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# Appeals judges press NEA on 'gender ideology' penalty for arts grants
- URL: https://www.urgentmatter.press/appeals-judges-press-nea-on-gender-ideology-penalty-for-arts-grants/
- Published: 2026-10-08T00:56:45.000Z
- Updated: 2026-10-08T00:56:45.000Z
- Description: A government lawyer conceded in court that a project's promotion of "gender ideology" can only count against it.
- Author: Adam Schrader
- Tags: Government and Cultural Heritage, #public-access

Federal appeals judges in Boston pressed a government lawyer Wednesday on why the National Endowment for the Arts allows "gender ideology" as a viewpoint that can count against an arts grant application but never for it.

The government is asking the First Circuit Court of Appeals to overturn a lower court ruling that blocked the NEA policy in September 2025\. Four arts groups represented by the American Civil Liberties Union brought the case, *Rhode Island Latino Arts v. National Endowment for the Arts*.

Jennifer Utrecht argued for the federal government before the panel, which included Judges David J. Barron, Julie Rikelman and Seth R. Aframe. She opened by acknowledging that the factor cuts only one way.

"In the District Court, we admitted that the fact that a project promotes gender ideology could weigh against a project's approval and would not weigh in favor of a project's approval," she said.

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She also told the court the government has "not disputed that that is best fit under a viewpoint as opposed to a content-based restriction."

Later in the hearing, which the court streamed online, a judge asked her to confirm the point: "So if it were to play into the decision, it would always play in as a penalty, correct?"

"Yes, Your Honor. That is the admission," she said.

She later said that one-way treatment is "not in the notice itself. That's an admission we made in district court."

The case stems from Executive Order 14168, which President Donald Trump signed on January 20, 2025, titled "Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government."

After the order, the NEA required grant applicants to certify they would not use federal money to "promote gender ideology," the ACLU said in an emailed media advisory.

Rhode Island Latino Arts, National Queer Theater, The Theater Offensive and Theatre Communications Group sued in March 2025\. The NEA dropped the certification soon after and replaced it with a penalty on projects expressing disfavored views, the ACLU said.

Senior U.S. District Judge William Smith issued the September 2025 ruling, Urgent Matter [previously reported](https://www.urgentmatter.press/trump-ai-chatbot-rewrites-arts-agencies-words-omits-smithsonian-pressure/). The ACLU said Smith found the policy "promises to penalize artists based on their speech."

The ACLU said the penalty has led some organizations to scale back projects that feature transgender characters or cast transgender or nonbinary actors.

The president's fiscal 2027 budget request proposes cutting the NEA to $29 million, from $207 million in fiscal 2026, as [previously reported by Urgent Matter](https://www.urgentmatter.press/why-america-funds-data-centers-but-cuts-the-arts/).

At the hearing, Utrecht said the NEA "functions as a patron of the arts" and that "the vast majority of applications are denied."

Much of the questioning focused on the last paragraph of the NEA's final notice laying out the policy. One judge read it as making "gender ideology" part of the agency's review of a project's "artistic excellence and merit."

"That sounds to me like what you're going to be evaluating for, is whether it promotes gender ideology," the judge said.

Utrecht argued the clause referred to the case-by-case review every application receives. "It literally says the opposite of that," the judge replied.

Earlier, a judge summarized the notice this way: "The president, without regard to this statute or these criteria, has generally said in grants, don't promote gender ideology, so we won't do it."

Utrecht responded that "the executive order itself directs the agencies to take lawful steps consistent with their statutory authorities to implement the priorities."

Judges also questioned whether it mattered that the policy stops short of an outright ban. One judge pointed to a concurrence by Justice Antonin Scalia.

"If you just apply a five-point handicap to all Black applicants, that's a problem. It doesn't matter that ultimately the five-point handicap may not bar that particular applicant. It's a policy that's systematically disadvantaging people," the judge said.

Utrecht said the NEA chair also consistently turns down projects that promote "racist ideology" or "anti-democratic ideals." Asked whether the agency has issued notices identifying any of those, she said, "No, Your Honor."

"You say it's not because it's indecent. It's not because it's necessarily inconsistent with American values. The only reason is the president has said so. Is that right?" a judge asked.

"That is not what the notice says, Your Honor," she said.

A judge asked whether the government agreed that the law that created the NEA "is designed to insulate these decisions from political pressure."

"I disagree with that statement," she said.

A judge then posed a hypothetical in which a president named "10 groups who consistently vote against me" and told the NEA to penalize every application from their members.

"No, I don't think that would be our position," she said.

The NEA is led by Mary Anne Carter, who chaired the agency during Trump's first term and was confirmed by the Senate in December 2025 to return, Urgent Matter [previously reported](https://www.urgentmatter.press/nea-claimed-records-request-could-be-voluminous-it-released-12-files/).

As the NEA canceled grants to community organizations in 2025, it kept approving millions of dollars for military-linked and national heritage initiatives, the records show, Urgent Matter [reported](https://www.urgentmatter.press/records-show-nea-approved-trump-aligned-grants-as-community-awards-were-zeroed/) in December 2025.

Utrecht closed by arguing that no artist is barred from making the work.

"People are free to make speech and art on their own time and dime. There's nothing prohibiting them from doing it. There's no regulation. Government money is not the only money involved here. There's plenty of funding available outside of this program," she said.

Vera Eidelman, a senior staff attorney with the ACLU's Speech, Privacy, and Technology Project, argued for the arts groups.

She told the court that "for the first time in its history, as we just heard the government say, the NEA has designed a policy to single out a particular viewpoint for categorical or consistent disfavor and disadvantage."

"I think the government's actually made it a very easy case for you. They've said this will always only be a negative," she said.

The judges tested her arguments. One described three hypothetical projects on the Lost Cause ideology of the South, one neutral, one condemning it and one praising it, and asked whether the NEA could reject the third because of its viewpoint.

Eidelman pointed to *National Endowment for the Arts v. Finley*, the Supreme Court's 1998 decision on the NEA's decency standard. "I think that Finley tells us that the government cannot do either version of that," she said.

A judge said "certain viewpoints, it seems hard to believe how they're ever going to be a plus," and offered "the viewpoint of promoting white supremacy" as an example.

"If the government can discriminate against one viewpoint in providing subsidies for private speech, it could discriminate against all viewpoints," Eidelman said.

A judge said the district court appeared to conclude that the only reason the NEA gave for adding the "gender ideology" language was that the executive order directed it. "That is my understanding as well," Eidelman said.

She said the NEA never explained what the term means for arts funding.

"What does it mean to promote gender ideology? Does it mean you can't have transgender artists? Does it mean you can't have an all-female cast for a Shakespeare play?" she said.

In rebuttal, Utrecht said "no application is being denied because it promotes gender ideology."

"When you're evaluating the sorts of projects under the current administration that are going to advance confidence in the use of taxpayer funds, you are going to take into account the president's policy priorities," she said.

She offered the NEA's current America 250 priority as a comparison.

"It is likely the case, although it's not written down anywhere, that projects that are critical of America 250 are categorically going to be denied, or there's going to be a thumb on the scale, because we're prioritizing projects that align with current priorities," she said.

"That's neither inconsistent with the statute, nor is it inconsistent with the First Amendment," she said.

In an emailed press release after the arguments, the ACLU said the government contends its funding decisions are government speech. The arts groups argue the policy violates the First Amendment and the Administrative Procedure Act.

"We stepped forward because artists should never have to choose between access to public funding and the freedom to tell their stories fully and honestly," said Marta V. Martínez, executive director of lead plaintiff Rhode Island Latino Arts.

*Urgent Matter is reader-supported. Please* [*consider subscribing*](https://www.urgentmatter.press/nasa-administrator-questioned-goddard-library-review-emails-show/#/portal) *to support independent arts journalism.*