Understanding Trump’s Anti-DEIA and Anti-Trans EOs: Overview and FAQs

In his first days in office, President Trump issued executive orders (EOs) directing federal agencies:

• not to engage in activities to promote diversity, equity, and inclusion (DEI), or
• not to recognize transgender or nonbinary people, and
• require all awardees of federal grants or contracts to agree and certify that they do not and will not:
  • conduct any DEI programs or engage in DEI activities, or
  • use federal funds to promote “gender ideology.”

Many writers have reached out to the Authors Guild with concerns over whether they can still apply for grants from the National Endowment for the Arts (NEA) and National Endowment for the Humanities (NEH). Those with existing grants have wondered whether the grants could be revoked. Many important literary organizations also rely on these grants and have been very concerned about their future funding.

News update: The NEA has amended its updated rules to say that they will not apply the DEI executive orders as long as the preliminary injunction issued by a Maryland court is in effect. The “gender ideology” anti-trans EO has been left in place as it was not part of that lawsuit.

Below, we break down the executive orders, how they’re being implemented by the NEA and NEH, and the current status of legal challenges seeking to stop their enforcement.

The DEI and “Gender Ideology” Executive Orders

On January 20, 2025, President Trump issued Executive Order 14168, Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government, whichprohibits promoting “gender ideology” or recognizing people who do not identify with the sex they were given at birth and issues an edict that the U.S. only recognizes two sexes, male and female (ignoring the biological and medical fact that not all people are born 100% male or female).

On the same day, he also issued Executive Order 14151, Ending Radical and Wasteful Government DEI Programs and Preferencing, which among other things directs all federal agencies to terminate DEI, DEIA, and “environmental justice” programs, offices, and positions, “equity-related” grants or contracts, and eliminates all DEI or DEIA performance requirements for employees, contractors, or grantees.

The next day, he issued Executive Order 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity, which also targets DEI efforts and prohibits federal agencies and recipients of federal funds from operating DEI programs that violate federal anti-discrimination laws. Specifically, this order states that the head of every agency shall include in every contract or grant award:

“(A) A term requiring the contractual counterparty or grant recipient to agree that its compliance in all respects with all applicable Federal anti-discrimination laws is material to the government’s payment decisions …

(B) A term requiring such counterparty or recipient to certify that it does not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws.”

Implementation by the NEA

For Grants for Arts Projects grants, the NEA updated its “Legal Requirements and Assurance of Compliance,” requiring applicants to certify that 1) they comply with all executive orders, 2) that they “will not operate any programs promoting diversity, equity, and inclusion (DEI) that violate any applicable Federal anti-discrimination laws…” and 3) they will not use any federal funds to promote “gender ideology.”

For now, it appears that applicants for Creative Writing Fellowships do not have to sign onto the updated Legal Requirements and Assurance of Compliance. They do, however, have to agree to comply with all NEA regulations including that they do not discriminate “on the grounds of race, color, or national origin, in accordance with Title VI of the Civil Rights Act of 1964, as amended” and that they will maintain records and submit reports necessary to determine compliance. This language would likely be interpreted as covering the EOs.

Implementation by the NEH

The NEH also posted updated guidelines stating that NEH awards may not be used for the “promotion of discriminatory equity ideology or support for diversity, equity, and inclusion (DEI) or DEIA initiatives or activities” or “to promote gender ideology.” Contrary to the EO, it did not state that grantees could not engage in any programs that promoted DEI but limited the requirement to funded programs.

Court Order Enjoining the DEI Executive Order

On Friday, February 21, the District Court for the District of Maryland preliminarily enjoined the DEI EO’s grant requirements on free speech and unconstitutional vagueness grounds. The court specifically stated that agencies cannot require grantees to certify compliance if the order is in effect. The White House filed a notice of appeal to the Fourth Circuit but has not issued any public statement about the court order to date.

The case, National Association of Diversity Officers in Higher Education et al v. Trump, was filed by the mayor and City Council of Baltimore, Maryland, along with associations representing chief diversity officers, professors, and restaurant workers, all of which rely on federal funding to support programs. Note that the outcome of the decision in this case will apply nationwide. The complaint argued that the contested provisions of the EOs are unconstitutionally vague, violating the Fifth Amendment by including undefined terms that fail to provide clear guidance on what speech or actions fall within the order’s scope. Additionally, the lawsuit claims that the provisions violate the First Amendment by suppressing free speech on politically significant issues and constitute a breach of the separation of powers, asserting that Congress did not grant the president authority over the federal programs and funds in question.

The court found that the plaintiffs were likely to prevail on the merits of all three claims and had shown a likelihood of harm from the EOs, justifying a stay of their enforcement pending resolution of the case. It stated the EOs as implemented by the agencies had a chilling effect on speech because it forces grant recipients to “self-censor.”

The Department of Justice filed a notice of appeal to the Fourth Circuit and moved for a stay of the injunction in the district court pending appeal. For now, the injunction is in place until the Fourth Circuit stays it or the unlikely case that when the case is heard on the merits, the district court changes its mind and determines that the orders are not unconstitutional. The decision on the merits will also likely be appealed.

A week after the court order, on Friday, February 28, the NEA added a note to its Legal Requirements and Assurance of Compliance stating:

Due to the preliminary injunction issued on February 21, 2025, by the United State District Court for the District of Maryland, Case No. 1:25-cv-00333-ABA, the NEA is not currently requiring any grantee or contractor to make any “certification” or other representation pursuant to [the executive orders]. This term will not apply to your award as long as this preliminary injunction remains in effect.”

The NEH has not revised its requirements to comply with the DEI EOs as of this writing.

We imagine that the government will try to take this case to the Supreme Court, but we do not think it will succeed. In addition to the claims raised in the Maryland case where the court found a likelihood of success, there is a solid line of Supreme Court cases on the legal doctrine of “unconstitutional conditions” for federal grants. This doctrine states that while Congress has the discretion to decide what it wishes to fund and can decide not to fund certain activities and speech, it cannot restrict grantees and potential grantees from speech outside of the programs funded by the government. 

Legal Status of the Anti-Trans and Gender Ideology Executive Order

The court order in the Maryland case did not apply to the anti-trans and so-called “gender ideology” EO. We believe, however, that this EO also fails constitutional muster and hope that this will eventually be borne out in court.

As described above, both the NEA and the NEH now require grantees to attest that they will not use funds to promote “gender ideology” per the “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government” EO.

Note that, unlike the anti-DEI EO, the gender ideology EO only applies to programs funded by the agencies and not to activities that an applicant undertakes outside of the funded programs.

FAQs on the Executive Orders and NEA/NEH Grants

What is “gender ideology” and what does it mean to promote it?

It is not clear exactly what “gender ideology” means or what programs will be deemed to promote “gender ideology,” but the main point of the executive order seems to be to deny the existence of transgender and non-binary people and to mandate that every person is either male or female and that their sex is biologically determined. It does not define “gender ideology” but describes it as thus:

(f) “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.

(g) “Gender identity” reflects 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.

Section 2 states that “It is the policy of the United States to recognize two sexes, male and female.” It further states that government agencies may no longer use the term “gender.”

The preamble to the EO also provides some hints on what the administration intends the term to mean. It says that “gender” is a term that “idealogues” created to “deny the biological reality of sex.” It talks about protecting women from exposure in women-designated places to “men who self-identify as a woman.” The order is particularly concerned with things like keeping trans women or men who identify as women from accessing women’s bathrooms or shower rooms. The preamble frames the EO as defending “women’s rights” and protecting “freedom of conscience by using clear and accurate language and policies that recognize that women are biologically female, and men are biologically male.”

Without commenting on the constitutionality of this EO or the factual inaccuracy of these statements, our interpretation of this EO is that it targets any acknowledgment of the existence of transgender and non-binary people. That would mean that any program or written work that acknowledges their existence likely would not be awarded a grant.

How do I know if the anti-trans EO applies to the project or program that I am applying for?

These standards are unclear and subjective, so it is not possible to give any certain answers for now as to what the administration would believe falls within it. At some point, if the EO is not enjoined or rescinded, perhaps the NEA and NEH will offer clearer guidelines.

For now, we interpret the anti-trans EO to mean at least that any organization applying for a grant must certify that the program(s) for which they are applying are not intended to promote or help trans or non-cisgender individuals or make any accommodation for them. It also likely means that you cannot acknowledge the existence of trans and non-binary people in the implementation of the program.

For the creative writing fellowships, it is unclear whether including trans characters in a novel or discussing gender or trans and non-binary people in a nonfiction work would be deemed to “promote” “gender ideology”—although it is quite clear that literary expression is a core expressive activity protected by the First Amendment. Still, as a practical matter, those reviewing submissions likely will feel constrained by the executive order and not award grants to literary works that recognize the factual existence trans and non-binary people even in fiction.

We believe that it is safe to say that the EO does not, however, extend to programs that promote cisgender LGB people or programs. The anti-trans EO appears to be focused on trans and non-binary people.

Still, the EOs will create a chilling effect among those judging awards. They will likely err on the side of caution given the vagueness of the EOs and the retaliatory, punitive approach that the administration has taken thus far with those who disagree with its views.

As such, even if your proposed project or program does not technically run afoul of the EO because it does not “promote” (whatever that is intended to mean) “gender ideology,” (whatever it is), but does mention or in some way touch on people being non-binary or trans in any context, that chilling effect likely would prevent the NEA and NEH from granting the project an award.

I received an NEA or NEH grant last year. Am I impacted?

We hope not and will keep you up to date on what we know. That said, once a grant is awarded, assuming you are in compliance with the terms of that grant when awarded, the government should not be able to ask for a refund or stop payment. You entered into a contract with the government and relied on it, and so unless there is language in the grant contract that allows them to stop payment or you have breached the terms, legally speaking the government cannot unilaterally pull out of the agreements.

Note that there is language in the EOs stating that agencies must require all grantees to abide by the EOs, but neither the NEA nor NEH has expressly indicated it will require compliance of current grantees.

Can I certify compliance to get my application if I am not 100 percent sure I comply?

It is generally not advisable to certify compliance if you are not 100 percent sure due to the possible consequences of non-compliance. First, the grant can be rescinded for non-compliance. You can even be forced to pay back funds already spent. Second, if applicants “knowingly” falsify their certification then they could be liable under the False Claims Act, which imposes fines of up to $10,000 and three times the amount of damages (the money government paid out) for “knowingly mak[ing], us[ing], or cau[sing] to be made or used, a false record or statement material to an obligation to pay or transmit money or property to the Government.” The EO and the NEA’s requirements make compliance “material” to the government’s payment decisions. To be clear, liability under the False Claims Act requires someone to have “knowingly” acted to defraud the government, so certifications made mistakenly would be excused.