NEA “Gender Ideology” Implementation Guidance - What Does It Actually Mean?

Image by Ted Eytan; used per CC BY-SA 2.0

On April 30, the National Endowment for the Arts released a Final Notice regarding the agency’s plan for implementing the requirements of Executive Order 14168, i.e., the “gender ideology” order. You can be forgiven if you missed it - the Notice, dated April 16, 2025, has received virtually no fanfare or coverage thus far. 

Before I get into the substance of the Notice, it’s important to recall the backdrop here. As previously discussed, on March 6, 2025, a group of arts organization with the support of the ACLU of Rhode Island, filed a lawsuit against the NEA challenging the requirement that applicants include an Assurance of Compliance with EO 14168 that “federal funds shall not be used to promote gender ideology”. Almost immediately, the NEA voluntarily agreed to suspend this requirement pending the outcome of this litigation. 

In the intervening two months, the parties have briefed and the Court has heard arguments focused on the First Amendment challenge to this requirement. On April 3, 2025 the Court, in ruling on the Plaintiffs’ Motion for Preliminary Injunction, made it clear that any blanket refusal to consider projects based on any specific speech - in this case, the expression of “gender ideology” - would likely be impermissible viewpoint discrimination and thus violate the First Amendment. The Court further determined that any blanket eligibility bar would likely violate the Administrative Procedure Act. Nevertheless, the Judge declined to issue the requested injunction on the basis that the NEA had suspended enforcement of the Assurance of Compliance language related to gender ideology and had committed to reviewing its implementation procedures and announcing its implementation strategy by April 30.

That’s where we are on the legal side. 

As for the Notice itself, it does three main things:

• First, the NEA explicitly rescinds the suspended certification requirements and states that there is "no eligibility bar to submitting an application". The formal recension of the Assurance of Compliance requirement is key from a legal perspective, as it removes the risk of liability under the False Claims Act if a project could be construed as having any element of "gender ideology". 

• Second, the Notice states that all applications will be reviewed individually by review panels per existing NEA review guidelines, namely for "Artistic Excellence" (overall quality of art, artists, etc) and "Artistic Merit" (community value, feasibility, goals, etc). The guidance explicitly acknowledges that this process looks only at the project covered by the grant application, not any other work done by the applicant (although it does not necessarily preclude consideration of an applicant’s overall body of work as part of the excellence and merit analyses).

• Third, the secondary standard of  "general standards of decency and respect for the diverse beliefs and values of the American public" (from the NEA's establishing legislation, 20 U.S.C. § 954(d)(1)) appears a lot, as does the fact that the Chair (or in this case, the Senior Advisor "performing the functions and duties of the Chair") will make the final decision regardless of the determination of the review panels. This feels like a lot of power in one person’s hands, but has always been part of the process, per the aforementioned legislation. 

What the Notice doesn't do is provide any real clarity about what will and won't be funded. The Notice leans heavily into the “general standards of decency” language, which I suspect will do a lot of heavy lifting to give cover to the denial of applications expressing “gender ideology”, i.e. trans and non-binary identity.* This frankly seems to be the only way to technically comply with the language of EO 14168, but the Notice never actually says that, because that would arguably be another way of phrasing a blanket ban. 

*Note that there is no definition of “gender ideology” given in the Notice, just as there was not in the Assurance of Compliance, but we can presume that the definition is the same as that from the EO itself, which states: 

“Gender ideology” replaces the biological category of sex with an ever-shifting concept of self-assessed gender identity, permitting the false claim that males can identify as and thus become women and vice versa, and requiring all institutions of society to regard this false claim as true. Gender ideology includes the idea that there is a vast spectrum of genders that are disconnected from one's sex. Gender ideology is internally inconsistent, in that it diminishes sex as an identifiable or useful category but nevertheless maintains that it is possible for a person to be born in the wrong sexed body.

Meanwhile, "Gender identity" is defined as "a fully internal and subjective sense of self, disconnected from biological reality and sex and existing on an infinite continuum, that does not provide a meaningful basis for identification and cannot be recognized as a replacement for sex."

Whether these are actually helpful or meaningful definitions is a different conversation altogether.

My basic takeaway here is that there is one piece of good news - the potential for financial and other liability for failing to accurately assure compliance with the gender ideology language has been removed from the equation. This might make the decision to apply for the next round of Grants for Arts Projects a little bit easier for applicants who were concerned about that risk. However, there is still very little clarity about what standards of “decency” and “values” will apply. It also remains to be seen what the Court will make of the NEA’s new implementation plan, so there will definitely be more to come on this in the coming months.

This material presented for informational purposes only. Not intended as legal advice.