SUNSHINE Radio were found to have breached an Ofcom code following a comment by one of their presenters, at the time, about the gender identity of singer Sam Smith.

The comments were made on September 16, last year, by Paul Ellery on his morning radio show that included discussions of news of the day.

Radio regulator Ofcom received a complaint that a presenter talked in a mocking manner about singer Sam Smith coming out as non-binary (an umbrella term to describe people whose gender is not the same as, or does not sit comfortably with, the sex they were assigned at birth).

After playing a Sam Smith track during the programme, Mr Ellery said: “I can’t get over this that he (Sam Smith) says he doesn’t identify with being male or female, so in future we have to call him ‘they’. And I heard somebody on – I think it was on BBC News Channel over the weekend – saying, ‘the easiest way to find out, Sam, if you’re male or female or they, is to take your clothes off – there we go you’re definitely a boy!."

Ofcom requested information from the licensee about the content on BBC News referred to in the programme. Ofcom stated that the licensee could not find it.

In a report of the incident released by Ofcom this week, Sunshine FM described the programme as a live, unscripted “one man show” and stated that there was no production team or “backroom staff” involved in its broadcast.

Sunshine said that the comment about Sam Smith’s gender was part of a “throw away short link” and was not intended to offend listeners.

However, it added that after reviewing the programme, the presenter’s view was that his comment was “misjudged” and had the potential to have caused offence.

Sunshine FM said that the presenter would not have deliberately sought to offend the LGBT (lesbian, gay, bisexual, and transgender) community.

The station added that Paul Ellery had undertaken compliance and legal training, in addition to him attending daily meetings to review content.

Sunshine added that the presenter had resigned from the radio station.

Ofcom also provided the presenter with the opportunity to make representations in this case, but he did not provide any.

Ofcom stated that they had only had one complaint from a listener about the comments.

However, the regulator concluded that 'these comments had the potential to cause offence as they sought to ridicule Sam Smith’s non-binary status.

'In addition, by referring to Sam Smith using the incorrect pronoun, the presenter appeared to ignore and undermine Sam Smith’s publicly stated gender identity.'

Ofcom acknowledged the steps Sunshine Radio has taken to improve compliance prior to the presenter’s resignation but found them in breach of Rule 2.3 of the Code 'broadcasters must ensure that material which may cause offence is justified by the context.'

An Ofcom spokesperson said: “We found that the presenter of this programme ridiculed a music artist’s gender identity, without any challenge or context. Those comments had the potential to cause offence and were not justified by the context.”