Pleading Gender-Stereotyping Under Title IX: Conclusory “Not Masculine Enough” Allegations Do Not Plausibly Allege Same-Sex Peer Harassment “On the Basis of Sex”

1. Introduction

Isaiah Humphries, a former Penn State football player, sued The Pennsylvania State University and Head Coach James Franklin (among others) alleging that teammates engaged in repeated sexualized abuse and hazing-like conduct and that the institution and coaching staff failed to respond adequately. After multiple amendments, the District Court dismissed Humphries’s Third Amended Complaint with prejudice. Humphries appealed.

The appeal presented two core clusters of issues:

• Title IX: Whether Humphries plausibly alleged that same-sex peer harassment was “on the basis of sex,” particularly under a gender-stereotyping theory.
• Pennsylvania tort law: Whether Penn State and Coach Franklin owed a duty supporting negligence theories (including negligence per se under Pennsylvania anti-hazing statutes), and whether related claims (e.g., negligent infliction of emotional distress) could survive.

2. Summary of the Opinion

The Third Circuit affirmed. It held that Humphries did not plausibly plead that the alleged same-sex harassment occurred “on the basis of sex” under Title IX because the complaint did not include facts permitting an inference that the perpetrators perceived Humphries’s traits as feminine (or otherwise sex-linked) and targeted him for nonconformity with masculine stereotypes.

The court also rejected Humphries’s negligence theories. His negligence-per-se claim failed because he did not plead facts showing the abuse was committed “for the purpose” of initiation/affiliation/continued status required by the Timothy Piazza Antihazing Law and its predecessor. His common-law negligence theories failed largely because Pennsylvania generally imposes no duty to control third parties absent a recognized exception, and the exceptions invoked (Good Samaritan undertaking under Restatement § 323; special relationship for student-athletes; affirmative-act theories; premises liability) were either inapplicable, inadequately pleaded, or forfeited. Because negligence was not plausibly pleaded, negligent infliction of emotional distress also failed.

3. Analysis

3.1. Precedents Cited (and How They Drove the Outcome)

A. Pleading standards and the posture of the case

• Ashcroft v. Iqbal, 556 U.S. 662 (2009)
  The panel emphasized that while factual allegations are accepted as true at the motion-to-dismiss stage, the complaint must still plausibly (not merely possibly) entitle the plaintiff to relief. This framing mattered because the opinion repeatedly characterizes Humphries’s allegations about “gender stereotypes” as conclusory rather than fact-supported.
• Keystone Redevelopment Partners, LLC v. Decker, 631 F.3d 89 (3d Cir. 2011)
  Cited for plenary (de novo) review of a dismissal. The Third Circuit independently assessed plausibility rather than deferring to the District Court.

B. Title IX framework for peer harassment and use of Title VII concepts

• Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998)
  Cited for the proposition that sexual harassment can constitute sex discrimination under Title IX, anchoring the doctrinal bridge between harassment and “on the basis of sex.”
• Davis ex rel. LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629 (1999)
  Supplies the peer-harassment liability concept and, importantly here, supports looking to Title VII case law to determine whether conduct is sufficiently “gender-oriented” to qualify as sex-based harassment under Title IX.
• Hall v. Millersville Univ., 22 F.4th 397 (3d Cir. 2022)
  The panel used Hall (citing Davis) to restate the requirement that the plaintiff plausibly allege that sexual harassment occurred as part of Title IX peer-harassment liability.
• Franklin v. Gwinnett Cnty. Pub. Schs., 503 U.S. 60 (1992)
  Cited alongside Davis to reinforce the appropriateness of consulting Title VII principles in Title IX harassment analysis.

C. Same-sex harassment and gender stereotyping

• Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998)
  Establishes that same-sex harassment can be actionable under Title VII, opening the door to same-sex Title IX theories by analogy.
• Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257 (3d Cir. 2001)
  The opinion uses Bibby to identify “punish[ment]” for “noncompliance with gender stereotypes” as a recognized pathway for same-sex harassment claims. The dismissal turned on the gap between invoking this label and pleading facts that make it plausible.
• Donlin v. Philips Lighting N. Am. Corp., 581 F.3d 73 (3d Cir. 2009)
  Used to underscore that allegations must connect the protected characteristic (or sex-based theory) to targeting; the panel pointed out that other players were allegedly abused too, without facts tying their abuse to the same purported sex-stereotyping rationale.

D. Theories not pursued or forfeiture

• Moody v. Atl. City Bd. of Educ., 870 F.3d 206 (3d Cir. 2017), Starnes v. Butler Cnty. Ct. of Common Pleas, 50th Jud. Dist., 971 F.3d 416 (3d Cir. 2020), and Lehmann v. Toys 'R' Us, Inc., A.2d 445 (N.J. 1993)
  The panel noted a different pathway: unwanted sexual touching may be inherently gender-based harassment (in Title VII analysis). But it declined to address it because Humphries did not plead that theory.
• United States v. Dowdell, 70 F.4th 134 (3d Cir. 2023)
  Applied for forfeiture: a “differential treatment” theory absent from the Third Amended Complaint could not be raised on appeal as a substitute for pleading.

E. Title IX retaliation pleading

• Doe v. Mercy Cath. Med. Ctr., 850 F.3d 545 (3d Cir. 2017)
  Provided the prima facie elements for Title IX retaliation (protected activity, adverse action, causal connection). The panel found the complaint lacked facts supporting causation—i.e., that defendants acted against Humphries because he complained.

F. Pennsylvania negligence principles: duty, exceptions, and “no duty to control third parties”

• Grove v. Port Auth. of Allegheny Cnty., 218 A.3d 877 (Pa. 2019) and Sodders v. Fry, 32 A.3d 882 (Pa. Commw. Ct. 2011)
  Grounded the negligence elements and the mechanics of negligence per se (duty and breach can be established via a violated statute).
• Maas v. UPMC Presbyterian Shadyside, 234 A.3d 427 (Pa. 2020)
  Supplied the central Pennsylvania principle: generally, there is no duty to control the conduct of third parties to prevent harm to others. Most of Humphries’s negligence theories were attempts to fit within recognized exceptions.
• Feleccia v. Lackawanna Coll., 215 A.3d 3 (Pa. 2019)
  Confirmed Restatement (Second) of Torts § 323 as Pennsylvania law and illustrated when an undertaking creates a duty (e.g., representing that certified trainers are provided). The panel distinguished Feleccia because Penn State’s “coaching and academic services” were not pleaded as services “necessary for the protection” of Humphries, and the alleged assurances were vague, not a specific protective undertaking.
• Kleinknecht v. Gettysburg Coll., 989 F.2d 1360 (3d Cir. 1993)
  Recognized a narrow “special relationship” duty for recruited athletes: to be reasonably prepared for foreseeable medical emergencies during the recruited sport. The panel refused to expand this narrow duty to a broader obligation to protect athletes from teammate abuse in dorms/academic buildings and found insufficient pleading to extend it even in athletic facilities (lack of pleaded foreseeability of the risk as tied to providing practice/locker-room facilities).
• Emerich v. Phila. Ctr. for Hum. Dev., Inc., 720 A.2d 1032 (Pa. 1998)
  Cited for the structure of special-relationship exceptions: duty may arise from a relationship to the wrongdoer (control) or the victim (right to protection).
• Alumni Ass'n v. Sullivan, 572 A.2d 1209 (Pa. 1990)
  Used as a limiting principle: Pennsylvania has rejected a general duty of colleges to protect adult students (and, by extension in the panel’s reasoning, a generalized duty to protect student-athletes outside narrow contexts).
• City of Philadelphia v. Beretta U.S.A. Corp., 277 F.3d 415 (3d Cir. 2002)
  Invoked for restraint: federal courts applying state law should not expand it beyond existing state precedent. This supplied the cautionary rationale for declining to broaden Kleinknecht.
• Althaus ex rel. Althaus v. Cohen, 756 A.2d 1166 (Pa. 2000)
  Mentioned but not reached: the panel did not decide whether Althaus’s duty-factor framework undermines Kleinknecht because Kleinknecht was inapplicable on these facts regardless.
• Paliometros v. Loyola, 932 A.2d 128 (Pa. Super. Ct. 2007)
  Applied to premises liability: Coach Franklin could not be liable as a “possessor of land” absent allegations establishing such status. The panel also held Humphries forfeited the “business invitee” theory as to Penn State by not pressing it below.
• Jordan v. Pa. State Univ., 276 A.3d 751 (Pa. Super. Ct. 2022)
  Controlled the negligent infliction of emotional distress analysis: without a viable underlying negligence claim, NIED fails.

3.2. Legal Reasoning

A. Title IX: why the “gender-stereotyping” theory failed at the pleading stage

The panel treated the case as a plausibility question: did the Third Amended Complaint plead enough facts to permit the inference that the harassment was “on the basis of sex”? Humphries chose to proceed on a narrow theory—punishment for noncompliance with gender stereotypes (per Bibby v. Phila. Coca Cola Bottling Co.)—rather than other possible same-sex harassment theories.

Humphries alleged he was refined, well-groomed, affluent-presenting, non-vulgar, sensitive, not physically aggressive, and not embracing a “thug persona,” and that he was perceived as “weak” and not meeting “stereotypical toughness and masculinity expected” of football players. The panel found the complaint missing the “why” and “how” facts that connect these descriptors to sex-based targeting—e.g., factual allegations about statements, slurs, comparisons, differential targeting, or other contextual indicia that the perpetrators were enforcing a gender norm as opposed to engaging in generalized domination, bullying, or “team hierarchy” violence.

The opinion also relied on the allegation that other players were treated similarly without pleading that those other players shared the same traits or were targeted for the same stereotype-based reason. This undermined an inference that the harassment was specifically because Humphries was perceived as nonconforming to masculinity, rather than because he was a selected victim for reasons not tied to sex.

B. Title IX: retaliation and differential-treatment theories

The panel took a pleading-discipline approach:

• Differential treatment by coaches in response to complaints was deemed forfeited because it was not in the Third Amended Complaint (per United States v. Dowdell).
• Retaliation was rejected because—even if “arguably raised”—the complaint did not allege facts supporting a causal connection between protected activity and adverse action (per Doe v. Mercy Cath. Med. Ctr.).

C. Negligence per se: why the anti-hazing statutes did not supply duty/breach

Humphries invoked two Pennsylvania hazing statutes: the Timothy Piazza Antihazing Law (effective November 19, 2018) and its predecessor, the Antihazing Law (repealed). The panel focused on statutory elements embedded in the definition of hazing: the conduct must be committed “for the purpose” of initiation/admission/affiliation or continuing membership/status in an organization.

Even accepting that the alleged abuse was severe and recurring, the panel found the complaint did not plead facts allowing an inference of that “purpose.” In other words, the opinion treated “hazing-like” conduct and “statutory hazing” as distinct: the latter requires purposeful linkage to organizational membership or status.

The court also noted an additional obstacle: the repealed Antihazing Law did not impose institutional liability in the way its successor does, further limiting the usefulness of negligence per se for part of the time period.

D. Common-law negligence: the duty barrier and why exceptions did not fit

Relying on Maas v. UPMC Presbyterian Shadyside, the court treated the central problem as duty: Pennsylvania generally does not impose a duty to control third parties to protect another from harm, absent recognized exceptions.

• Restatement (Second) of Torts § 323 (“Good Samaritan” undertaking): The panel held “coaching and academic services” were not pleaded as services “necessary for the protection” of Humphries, so the undertaking doctrine did not generate a protective duty here (distinguishing Feleccia v. Lackawanna Coll., where certified athletic-trainer services were specifically undertaken for protection).
• Special relationship for recruited athletes (Kleinknecht): The panel characterized the duty in Kleinknecht v. Gettysburg Coll. as narrow—preparedness for foreseeable medical emergencies in the recruited sport context—and refused to extend it to dormitory or academic settings, citing Pennsylvania’s rejection of generalized university duty (Alumni Ass'n v. Sullivan) and federal-court restraint (City of Philadelphia v. Beretta U.S.A. Corp.). Even as to the locker room, the panel faulted the complaint for not pleading that teammate sexual abuse was a foreseeable risk incident to conducting practices/providing locker facilities.
• “Affirmative acts” / promises by Coach Franklin: The panel found alleged assurances to parents too vague to constitute a specific protective undertaking comparable to the concrete representations in Feleccia v. Lackawanna Coll..
• Premises liability: The claim failed as to Coach Franklin because he was not alleged to be a “possessor of land” (per Paliometros v. Loyola). As to Penn State, while possession was alleged for one building, the “business invitee” theory was forfeited for not being argued below.

E. Negligent infliction of emotional distress

The panel applied Jordan v. Pa. State Univ.: without a viable negligence claim, NIED cannot proceed. Thus, NIED fell with the negligence theories.

3.3. Impact

A. Title IX pleading discipline for same-sex harassment theories

Although nonprecedential, the opinion illustrates a practical rule likely to influence pleadings in the Third Circuit: when a plaintiff relies on gender-stereotyping to show same-sex harassment was “on the basis of sex,” it is not enough to:

• list personal attributes,
• assert the plaintiff was “seen as weak,” and
• state he was targeted for failing to meet “masculinity” expectations.

Plaintiffs should expect courts to demand linkage facts—e.g., allegations about what perpetrators said or did that reveals sex-based enforcement of gender norms, and facts supporting why the plaintiff (and similarly situated victims) were selected for that sex-linked reason.

B. Statutory hazing as negligence per se: the “purpose” element is a gatekeeper

The decision underscores that negligence per se based on anti-hazing statutes may hinge less on how abusive the acts were and more on whether the complaint plausibly alleges the statutory purpose—initiation/affiliation/continued status. For future litigants, pleading should address:

• the organizational context (team rules, rites, “earning” status),
• communications tying abuse to membership or standing, and
• timing and selection patterns that support an inference of statutory purpose.

C. Pennsylvania duty limits for universities and coaches

The opinion aligns with Pennsylvania’s general reluctance to impose broad protective duties on universities for harms inflicted by third parties. It also illustrates how difficult it is to convert:

• generalized “we’ll take care of your child” assurances, or
• the ordinary provision of coaching/academic services

into a legally recognized undertaking or special relationship imposing an affirmative duty to prevent peer-on-peer criminal misconduct.

4. Complex Concepts Simplified

• “On the basis of sex” (Title IX): The harassment must be connected to sex. Sexual content alone does not automatically satisfy this; the complaint must plausibly allege the conduct was because of sex (here, Humphries chose a gender-stereotyping route).
• Gender stereotyping: A theory that discrimination/harassment occurs because someone does not conform to expected gender norms (e.g., “men must act tough”). Courts often look for concrete indicators that the harasser was policing gender norms, not merely bullying.
• Negligence per se: Using a statute to supply the duty and breach elements of negligence—if (and only if) the statute applies and its elements are plausibly alleged.
• No-duty-to-control-third-parties rule: Generally, you are not legally responsible for preventing someone else’s misconduct unless a recognized exception applies (special relationship, undertaking, premises-liability conditions, etc.).
• Restatement § 323 (“Good Samaritan” duty): If you voluntarily undertake to provide protective services and do so negligently, you may owe a duty. Courts often require a specific protective undertaking, not vague assurances.
• Forfeiture: A party generally cannot rely on a theory on appeal that was not pleaded or preserved in the lower court.

5. Conclusion

The Third Circuit affirmed dismissal because Humphries’s Third Amended Complaint did not plausibly connect the alleged same-sex abuse to sex discrimination under a gender-stereotyping theory, and because his negligence theories failed on statutory-element and duty grounds. The opinion’s broader significance lies in its insistence on (1) fact-specific pleading tying gender-stereotype allegations to perpetrators’ motives and selection of victims, and (2) careful adherence to Pennsylvania’s restrictive duty rules when plaintiffs attempt to hold universities/coaches liable for third-party peer misconduct.