“We now, as a community, have the ability to galvanise,” says Giselle Byrd, the first Black trans woman to lead a regional theatre company in the US. “This is injustice. We have fought this before and we will fight it again. We cannot let bigotry and hatred defeat us nor take over our stages or places of cultural worship.”
Byrd, 32, is executive director of The Theater Offensive, which presents art by, for and about queer and trans people of colour. It started in Boston in 1989 as an arts activism organisation responding to political failures around the HIV/Aids pandemic. It now finds itself on the frontline of Donald Trump’s culture war.
The Theater Offensive is one of several organisations challenging the National Endowment for the Arts (NEA), a federal body that offers funding for projects based on artistic excellence, over its requirement that grant applicants will not promote “gender ideology”, a condition stemming from a presidential executive order.
The groups argue that this requirement is unconstitutional, violating principles of free speech and due process, and exceeds the NEA’s statutory authority, jeopardising funding for projects addressing LGBTQ+ themes. They have joined a lawsuit filed by the American Civil Liberties Union (ACLU) against the NEA.
Byrd explains: “This is a great departure from the NEA’s mission, which is to help all Americans create art. This is censorship at its peak and this is also erasure of trans, non-binary and gender-expansive narratives. We have provided contributions to the cultural canon for centuries on end and we will continue to do so.”
Trump and his far-right allies have made gender, and moral panic about transgender athletes playing women’s sports, a rallying cry in their attacks on “wokeness”. In his first week in office, Trump signed an executive order proclaiming that the government would recognise only two sexes, male and female.
The ACLU and plaintiff organisations are challenging the NEA’s implementation of Trump’s order directing that “federal funds shall not be used to promote gender ideology”.
The core of their objection rests on the first amendment. They argue that the new requirement imposes a viewpoint-based restriction on artists’ speech, violating the principle of viewpoint neutrality. The government, even when providing subsidies, cannot aim to suppress ideas or impose conditions that disproportionately burden certain viewpoints.
The lawsuit also claims that the “gender ideology” prohibition is unconstitutionally vague under the fifth amendment’s due process clause. The lack of a clear definition makes it difficult for artists and organisations to understand what speech is prohibited, leading to a chilling effect and potential for arbitrary enforcement.
The ACLU contends that the new requirement exceeds the NEA’s statutory authority, which mandates that funding decisions be based on “artistic excellence and artistic merit”, while also considering “general standards of decency and respect for the diverse beliefs and values of the American public”.
The lawsuit details how the new requirement is directly harming the plaintiff organisations, forcing them to censor their artistic expression and potentially exclude artists and themes related to transgender, non-binary and queer identities.
The Theater Offensive has in the past received funding for Fly, a play exploring a gay Black man’s experience with mental health, death and liberation, and its Queer (Re)Public Festival, taking place in June. It plans to apply for funding for an original play, Smoke, featuring trans actors and exploring trans life.
Byrd, who joined as executive director in 2023, comments: “We joined this lawsuit because this is injustice. It’s discriminatory. Violating artists’ right to free speech cannot happen. I don’t succumb to mediocrity and I won’t start now. We have a right to be here and we also have to acknowledge that we’re fighting this battle.”
Rhode Island Latino Arts (RILA) planned to apply for funding for a production of Faust potentially featuring a non-binary actor and a storytelling programme that previously included LGBTQ+ topics. Due to the requirement, RILA is instead pursuing a more restricted project to comply with the prohibition.
The National Queer Theater (NQT), which has received $20-25,000 in funding a year, intends to apply for funding for its Criminal Queerness Festival, which features work from playwrights from countries where queerness is illegal or dangerous. But it fears ineligibility due to the targeting of “gender ideology”.
Adam Odsess-Rubin, founding artistic director of National Queer Theater, says: “What does it say to have a theatre, especially one that is welcoming censored artists from around the world, if we ourselves are being censored? It’s deeply ironic because the NEA has been supporting our work for two years now and encouraged our work.”
Odsess-Rubin described Trump’s assault on arts and culture as “authoritarianism 101”, adding: “He cited drag shows at the Kennedy Center as the reason why he believed he needed to take over, so LGBT issues are not at the periphery of these attacks on artistic freedom and civil rights in the US; they’re at the very core of it.
“It’s a generational battle over how we talk about gender, how we talk about identity, how we embrace or reject diversity, whether we move towards a more progressive and inclusive society or a more repressive and conservative one.”
Theatre Communications Group (TCG), a national organisation with 650 member theatres, has received regular grants from the NEA. Emilya Cachapero, its co-executive director of national and global programming, based in New York, says: “It’s essentially freedom of speech issues and we believe constitutionally that those are still the right of every artist, every person in this country.
“The NEA has supported projects in previous years in places from Honolulu to Juneau to Tucson to Montgomery to Providence and there have been projects developed that would never even hit the commercial world or the larger audience.”
The new guidelines raise fundamental questions over the portrayal of characters who identify as non-binary or, as in many William Shakespeare plays, men who dress as women and vice versa.
Cachapero adds: “If the ‘gender ideology’ order was to have been in place, say, in the last 20 years then we would not have had a Kinky Boots, we would not have not had productions of La Cage aux Folles. There are objections within the ‘gender ideology’ that theatres could not even have a character that was that, let alone the theme of the play.”
The complaint references the supreme court case NEA v Finley (1998), which upheld a “decency and respect” clause in NEA funding criteria. However, the ACLU argues that the current “gender ideology” prohibition is distinct because it constitutes viewpoint discrimination, a scenario the Finley court explicitly stated would present a “different case”.
The ACLU scored a win earlier this month when the NEA agreed to remove from its two-step application process a requirement that artists certify they will not use funds to promote “gender ideology”, pending litigation. The matter will be addressed at a court hearing on 27 March ahead of the final applications deadline, which has been delayed to 7 April.
Vera Eidelman, senior staff attorney at the ACLU, explains: “We have asked the court to issue an opinion before the second part of the application is due because though the certification requirement is no longer live, there is still a prohibition on the NEA approving any funding applications that look like they might promote what the government deems to be ‘gender ideology’.
“It is very important to know before the second part of the application is due whether that remains a prohibition. Some of our clients would change the scope of their projects if that were no longer a funding criterion and others are basically precluded from getting funding if that remains a funding criterion.”
Beyond the “gender ideology” prohibition, the NEA also initially required applicants to agree not to promote diversity, equity and inclusion – another Trump scapegoat. However, this requirement is now on hold thanks to a preliminary injunction issued in a separate case in Maryland.
The NEA has also announced the cancellation of its “Challenge America” programme, which supported underserved communities, and will prioritise projects celebrating American heritage in the lead-up to the country’s 250th anniversary.
Meanwhile Trump has been showing more of an authoritarian obsession with the arts in his second term than in his first. He appointed himself chair of the John F Kennedy Center for the Performing Arts and appointed a loyalist, Ric Grenell, as president. Last week he visited the complex and declared his love of the 1980s Andrew Lloyd Webber musicals Cats and The Phantom of the Opera.
At a moment when Democrats, activists and citizens are called to action and not to tune out, artists are no exception. Derek Goldman, artistic and executive director of the Laboratory for Global Performance and Politics at Georgetown University in Washington, says: “There’s the adage that authoritarian regimes understand the power of the arts and of narrative sometimes better than the artists themselves.
“In arts communities there’s tended, in an American context, to be a little bit of cultural isolationism and ‘leave us alone to do our work’, the kind of sacredness to protect our space. Artists haven’t always been socialised to think of themselves as belonging at the table when critical issues of society and policy – whether they’re about migration, climate, gender issues – are being navigated.”
But Goldman continues: “If we’re to take seriously our role as storytellers, as cultural workers, we have to be aware that we are needed in those spaces. Sometimes we’re going to be invited in; sometimes we’re not. This is a time to not be defeatist and capitulate but in fact these periods are times where artists step up and take the lead, whether that was in South Africa around the Market Theatre, whether that’s the Belarus Free Theatre.
“This is a time where artists have a real role to play that’s urgent. It may take some doing to define the best ways or how we build community around that. The actions of the administration are to be taken very seriously – they’re no joke – but I already feel an energy of quite meaningful response and momentum.”
