On April 21, the National Institutes of Health notified a researcher at a teaching hospital in the Boston area that her grant was being renewed for the fourth year in a row. In most years, such confirmations are uncontroversial.
But because this is not a normal year, the scientist, who spoke on the condition of anonymity because she does not have permission from her employer to speak to the media, dug into the fine print. And she learned that the grantee was expected to comply with the gender-equity law Title IX — “including the requirements set forth in Presidential Executive Order 14168 titled Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.” That’s the executive order President Trump signed on the first day of his second term, directing the government to recognize two sexes, male and female.
The new terms “felt like a little bit of a punch in the gut,” said the scientist, who added that she was confused about how they would affect her. Her grant is about how genes are regulated in lung disease, and its official description does not mention transgender or nonbinary people, nor diversity, equity, or inclusion.
“What happens if someone decides I’m not adhering to this particular policy?” she asked. “Does my entire research program fall apart?”
The Chronicle has confirmed that at least two institutions have received grant notices ordering them to comply with Trump’s anti-transgender executive order, marking a new front in the administration’s efforts to reshape the scientific ecosystem and a new challenge for universities who want to keep their federal funding.
After Trump took office, the NIH began canceling hundreds of grants about LGBTQ+ health and diversity. A spokesperson for the NIH’s parent agency, the Department of Health and Human Services, told The Daily Signal, a conservative outlet, last month that the shift “away from politicized DEI and gender ideology studies” is in “accordance with the president’s executive orders.”
Now, the NIH is introducing fine print that appears to require all grantees, regardless of their field, to uphold those stances. In a policy posted in late April, the NIH announced that all newly issued grants, effective immediately, would come with requirements related to “diversity, equity, inclusion, and accessibility.” Grantees must not “operate any programs that advance or promote DEI, DEIA, or discriminatory equity ideology in violation of federal antidiscrimination laws,” the policy states. Recipients must also not take part in “a discriminatory prohibited boycott” against Israeli companies, including “companies doing business in or with Israel.”
The new policies apply to institutions that accept funds on scientists’ behalf, according to two lawyers who reviewed the language. So if a university accepts a grant with these terms, it could be at risk if the government considers anyone at that campus — not just the scientist spending the money — to be perpetuating “DEI” or “gender ideology extremism.”
The NIH reserves the right to “terminate financial assistance awards and recover all funds,” states its April 21 policy on diversity. And the term sheet citing the anti-transgender executive order states that payments “are predicated on compliance with the above requirements.” It says that violators can be held liable criminally as well as under the False Claims Act, the anti-government defraudment law.
“Saying no to grant funding is not good for most researchers,” said Scott Schneider, a higher-education lawyer. “Agreeing to grant conditions that we think are unlawful or give rise to practical problems, or moral or ethical problems, isn’t good, either. So it kind of leaves folks with, ‘Well, what are we going to do now?’”
The NIH did not return a request for comment.
On April 28, a researcher at the University of Michigan’s Population Studies Center received a grant notice citing the “two sexes” executive order, according to Sarah Burgard, the center’s director. The letter came from the Eunice Kennedy Shriver National Institute of Child Health and Human Development, and the grant is on hold while the university’s legal team works on a response, according to Burgard. A university spokesperson did not return a request for comment.
It is unclear how many of these notices have gone out. The NIH has been relatively slow to award grants this year, in part because of monthslong delays of the peer-review meetings that inform funding decisions, so the new terms may not be widely distributed yet.
A spokesperson for the Association of American Universities, which represents research universities, said that the organization was aware of the language, but declined to comment further.
Peter Lake, a professor of law and director of the Center for Excellence in Higher Education Law and Policy at Stetson University, called the policies “pretty spooky.”
“The concern is that someone starts knocking, like, ‘Well, look at that, there’s a DEI or DEIA program somewhere in your institution, and you didn’t tell us about it, and you’re not in compliance, so let’s lock up the grantees or charge them with False Claims violations,’” he said. “I think anybody that’s getting these notices needs to walk into counsel and ask, ‘Does the institution really want me to take this money under these conditions?’ And only they can answer that.”
Universities could challenge these terms in court, Lake said. Some institutions and states have been suing the administration over research cuts, and temporarily won back funding in some instances. But litigating could mean “living in legal purgatory” while the executive branch and the judicial system battle it out, Lake said.
In the past, he added, a university could have expected the government to give it a chance to resolve compliance-related concerns before escalating. Now, “it’s a new day in grant-funding contractual relationships with the federal government,” he said. “People need to wrap their heads around the fact that this is going to be a new kind of relationship, with much more of a likelihood of an adversarial relationship than we’ve really ever seen before with the federal government.”
